Friday, July 28, 2017

New Jersey Family Law: Responding to the Complaint for Divorce

When served with a Complaint for Divorce, a prospective client will ordinarily ask – “what should I do?” Typically, in a New Jersey divorce, there will be four (4) alternatives:
  1. File an “Appearance” in which the allegations requesting the divorce are not contested, but contesting the customary issues of the divorce proceedings;
  2. File an “Answer” in which the allegations contained within the Complaint are denied and dismissal of the Complaint for Divorce is requested;
  3. File an “Answer and Counterclaim” in which the allegations contained within the Complaint are denied, dismissal of the Plaintiff’s Complaint for Divorce is requested, and a counterclaim for divorce is made whereby the Defendant makes his or her own claims for relief; or
  4. Do nothing, which may result in default being entered.
Generally, when service of the Complaint for Divorce is made upon the Defendant, a proper response must be filed within thirty-five (35) days of service, exclusive of the day of service. Although the time for filing and serving a responsive pleading may be extended in some instances by either consent of the parties or by Court Order for good cause shown, a served party should consult with an experienced divorce attorney as soon as possible to determine which form of response is appropriate under the particular circumstances of the case.

The New Jersey Rules of Court permit a Defendant to file a written appearance and, without filing an Answer, be heard as to the issues of alimony, equitable distribution of property, custody and visitation, child support, attorney fees and costs, and other issues incident to the divorce proceedings. Alternatively, a party may wish to file an Answer if he or she desires to contest the grounds for divorce or other collateral issues – the Answer responds to the specific allegations of the Complaint, admitting the allegations that are true, denying those that are false, indicating when he or she does not have knowledge or information to sufficiently respond, and asserting any affirmative defenses. If the party filing an Answer desires any affirmative relief for any cause of action that may exist, he or she may wish to file a Counterclaim.

On the other hand, when a served Defendant fails to file a proper response with the Court, default may be entered. Of course, if a party wishes to be heard as to any issues pertinent to the divorce, he or she should file a timely responsive pleading. However, as explained in Clementi v. Clementi, 434 N.J. Super. 529 (Ch. Div. 2013), by the Honorable Lawrence R. Jones, J.S.C., recently retired of the Ocean County Superior Court, when a Defendant defaults and fails to participate in the divorce proceedings, the Plaintiff is not automatically entitled to all requests he or she has made; rather, the Plaintiff “still has an ongoing obligation to persuade the Court, by a preponderance of the evidence, that the proposal for equitable distribution is fair and equitable under the specific facts of the case.”  Nonetheless, a served party should immediately consult with an experienced divorce attorney as soon as possible to ensure that his or her interests are protected.

If you have any questions in regards to divorce in New Jersey, equitable distribution, or any aspect of family law, you may wish to consult with an experienced attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved

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