A Judgment of Divorce is necessary to end a marriage, and a legal proceeding must be brought in the Supreme Court of the county where the Plaintiff (person starting the case) resides. A divorce case is sometimes referred to as a matrimonial proceeding.
Approximately ninety-five (95%) percent of all cases end in a settlement, and do not proceed to a trial. The settlement may be in the form of a written agreement, also referred to as a Stipulation of Settlement, or a Stipulation dictated on the record in court.
A substantial number of cases do require some judicial intervention, which occurs when one party files for a Preliminary Conference. That is the first time the parties will be required to go to court. That initial or Preliminary Conference will result in a stipulation or agreement which sets forth a timetable for the exchange of financial records, or “discovery”, appraisals of real estate, or the evaluation of a business by a forensic accountant. If there are unresolved issues relating to custody or visitation/parenting time, the judge will appoint an Attorney for the Child/Children (AFC).
The parties are then provided a date for a status conference, typically two (2) months later. At the status conference the judge assigned to the case, or the judge’s Principal Law Clerk, will discuss the issue with the attorneys, and sometimes the parties, to try and resolve issues without a trial.
At any time in the process, the parties may reach an agreement on a particular issue, which is then set forth in a written agreement, or placed upon the record (an oral stipulation) before the court stenographer and the judge. Sometimes an initial agreement covering all issues will be placed upon the record right before the trial begins, or even during trial.
The primary issues that are part of a divorce case include equitable distribution or marital property, declaration of rights to separate property, custody and visitation/parenting time, child support, spousal support/maintenance, exclusive use of the former marital residence after trial, and counsel fees.
While parties can elect to enter into a Separation Agreement addressing all of the issues as in a divorce, but remain married, the only financial benefit to a Separation Agreement is that sometimes the parties can remain covered by the family health insurance policy. Once the divorce occurs, the husband and wife cannot remain on the same policy.