How to Get a Divorce – Part 3

By: Jessica N. Mazur Practice Area: Family Law

The previous article How to Get a Divorce – Part 2, left off with Step 4 - the exchange of discovery.  Though many cases settle without a significant exchange of discovery, you should have all the information necessary to make an informed decision. 

Step 5 – Custody and Parenting Time: While discovery is being exchanged, if custody is an issue, you will attend Custody and Parenting Time mediation, free of charge, through the Courts. One of the Court’s trained mediators will meet with you and your spouse and will assist you in drafting a custody and parenting time plan. Typically, your attorney does not accompany you at this mediation.  Often times, if a settlement cannot be reached on custody and parenting time, then custody experts are retained or a Custody Neutral Assessment maybe ordered. Some parties opt to attend private mediation if they think an agreement can be reached but their circumstances are too complex to be resolved through the Court’s complimentary custody and parenting time mediation sessions.

Step 6Early Settlement Panel: Until you have signed a settlement agreement and are scheduled for an uncontested divorce hearing, the Court will continue to schedule tasks/dates to keep your case moving forward.  The next mandatory Court appearance, after the Case Management Conference, is Early Settlement Panel (ESP).  At ESP, your attorney will present your settlement position/argument to a panel of attorneys that are experienced in matrimonial law and volunteer their time to the Court to assist in settling cases.  Your spouse’s attorney will set forth his/her position.  In advance of ESP, a panel statement is drafted by your attorney.  This is an opportunity for you and your attorney to discuss your settlement position in detail.  This is an important step in your case.  If at the conclusion of ESP, you do not accept the panel recommendation, further negotiation may result in a settlement agreement being reached.  If you are unable to settle at ESP, your next step is Mandatory Economic Mediation.

Step 7 – Economic Mediation: Most cases settle at Mandatory Economic Mediation.  The first two hours of mediation are free; one hour is used by the attorney-mediator to review documents submitted in advance by your attorney, and one hour is used for mediation.  It may take more than one mediation session to reach a resolution.  If a settlement is reached, a term sheet with the broad strokes of settlement may be drafted and signed that day.  This gives the attorneys time to draft a more formal settlement agreement that addresses any additional nuances, but ensures that the major items in dispute are resolved and agreed-upon.

Step 8Settlement Agreement:  One of the attorneys will prepare a comprehensive settlement agreement which will address all issues relating to your divorce, including but not limited to support, custody/parenting time, equitable distribution of assets and liabilities, insurance, and counsel fees. The agreement will be circulated and reviewed by the parties and attorneys, and revisions will be made. Once the agreement has been modified to everyone’s satisfaction, it will be signed by the parties and notarized. By entering into an agreement, you are waiving your right to a trial, and you are agreeing to be bound by the terms of the Agreement. It is a binding contract between you and the other party.

Step 9 – Uncontested Dissolution Hearing: Once a settlement agreement is signed, the Court will need to be advised and your matter will be set down for an uncontested hearing, also sometimes called a “put-through”.  At the hearing, the Judge or your attorney will ask you questions including, but not limited to, your understanding of the agreement and whether you have entered into the agreement without coercion or while under duress.  At the conclusion of the uncontested hearing, the Judge will grant you a divorce and you will receive a formal Judgment of Divorce and your fully incorporated settlement agreement. It is at this time that your agreement, formerly just a contract, becomes a binding Order of the Court.

If you are unable to reach a settlement, the Court may give you one last chance to settle by scheduling your case for an Intensive Settlement Panel (with a volunteer attorney again acting as mediator) or Intensive Settlement Conference (with the Court possibly involving a settlement Judge).  If you are still unable to settle, your case will proceed to trial.  The dates will be set by the Court.  As Courts are often backed-up, it can sometimes take as long as a year to complete a trial, and sometimes longer than that for the Court to render a decision.  For this reason, I ask clients to consider arbitration.  Arbitration is essentially a private trial.  You and your spouse retain a retired Judge or an attorney to act as the decision maker on your case.  Whether you proceed with trial or arbitration, following the presentation of witnesses and evidence, a decision will be entered and formalized.  If you arbitrate, at the conclusion of arbitration, after formalizing the arbitration decision, an uncontested hearing would be scheduled by the Court so that a Final Judgment of Divorce could be entered to dissolve your marriage.

If you would like to explore the above options or learn more about other roads to divorce, including the Collaborative Divorce process, please contact me, Jessica N. Mazur at jmazur@hoaglandlongo.com or call me at 732-545-4717 x3859.