After Signing Your Divorce Agreement
We’ve Signed Our Agreement... What is Next? Parts 1-3
I. We’ve signed our Agreement… What is Next?
If you are reading this, congratulations — the heavy lifting of mediating a settlement is behind you, and what comes next is straightforward (if bureaucratic and administratively tedious).
A fully executed, notarized Agreement: The golden ticket to an uncontested divorce
Once spouses have signed and notarized their formal agreement — either a Marital Settlement Agreement or Property Settlement Agreement in New Jersey, or a Separation Agreement or Stipulation of Settlement in New York — we file pleadings to legalize the divorce.
Once spouses have a signed agreement, they can proceed with an uncontested divorce, which is permissible only when an agreement exists between the parties. In contrast, a contested divorce requires litigation — the fundamental misadventure that a mediated divorce circumvents.
In an uncontested divorce, also known as a no-fault divorce, the grounds generally used are irreconcilable differences for six months or longer (NJ) or an irretrievable breakdown of the marriage for six months or longer (NY).
Preparing the Pleadings
Although an Agreement is in place, the divorce is not yet final. Nor can the Agreement alone be submitted to the court. The Agreement must be submitted with various other documents known as pleadings. The pleadings are the legal documents required by the court to process a divorce. The pleadings contain forms requesting the court’s intervention, asking that the court review and formalize the divorce and grant the relief the parties have requested. Pleadings include, but are not limited to, such forms as the Complaint for Divorce, Acknowledgement of Service, Certification of Non-Military Service, and Certifications confirming insurance information and other personal data. The pleadings inform the court of what is happening (a divorce), to whom it is happening (the parties, their children), and what the court is supposed to do about it all.
The pleadings and the procedure they require ensure that the rights of the parties are protected, particularly that each party is properly informed of the legal proceedings and has the opportunity to consent or object. The pleadings distill the matter into a particular format that the court can easily recognize and process. In the same way, doctors must submit prescriptions in a particular, standardized format, so must lawyers submit pleadings. The standardization assists the court in reviewing the submissions in a manner somewhat more like grading results of a standardized, fill-in-the-bubble test than evaluating an essay exam.
In order to prepare the pleading, the parties are required to provide some additional information and, in New Jersey, fill out a couple of forms directly. The majority of the documents are prepared by the attorney filing the uncontested divorce.
II. Plaintiff v Defendant — What Is in A Name?
One decision that must be made before preparing the pleadings is which party will be named as plaintiff and which as defendant. In a mediated, uncontested divorce, the words plaintiff and defendant are of virtually no consequence. That is, there is neither advantage nor disadvantage to either assignment. Notwithstanding, these unfortunate terms are so loaded with cultural and linguistic biases, some, I expect, held in our collective unconscious, that it is worth saying something about them. My hope is to disabuse my divorcing friends of stigma that causes unnecessary discomfort or insult.
In both New York and New Jersey (and most of our United States), we are limited to certain terms that are both archaic and unpleasant. Legally, the terms are necessary to distinguish one party from the other, to assign one party the role of commencing the action, and the other the role of responding to the action; to clearly designate who signs and submits which document when, and so forth. If you consider the pleadings to be a formal, specific “correspondence” between two participants, it makes sense that the court needs a consistent means of identifying each party. Legally, the term plaintiff simply means the one who initiates the action, while defendant means the one who responds.
The term “plaintiff” has ancient roots and implicit meanings and associations. Plaintiff may imply a kvetchy nudnick — someone who can't keep still or go with the flow. Plaintiff may also imply the one who wants the divorce or gave up on the marriage. Defendant carries implications of being broken up with or guilty of some offense. It implies that at least one person has found fault with you, is calling you out, and you have to defend yourself against attack. The defendant perhaps sounds like the wrongdoer who failed the marriage, did not want the divorce, or is somehow the weaker party. Defendant can indicate having no choice in the matter — being acted upon.
In a mediated divorce, this never needs to be the case. In a mediated divorce, the plaintiff and the defendant are equally empowered and equally engaged in a transparent process. (Both are equally irritated, bored, and sometimes perplexed.) Together, by mutual consent, the parties decide with their mediator who will be plaintiff and defendant.
Often it is a practical decision. For example, a couple may decide that the spouse who is better at managing paperwork or has access to a scanner will be the plaintiff. Or the spouse, who travels for work and is often unable to check email for incoming paperwork, will be the defendant. In our process, the parties, regardless of how they are identified for purposes of pleadings, are treated equally. Both parties prepare documents, receive and review everything at the same time.
Best to think of taking the role of plaintiff or defendant somewhat like choosing your meeple or token in a board game, such as Monopoly. In order to comply with the rules and make any sense of the universe you are entering, one player chooses the hat, and the other the thimble — it makes no difference apart from consistently identifying each party correctly throughout the papers and process. While I appreciate that being the battleship or iron has various connotations for individuals, I ask my clients to take the terms plaintiff and defendant lightly, as one takes a number at a deli and refrains from delving into the numerological significance of the number drawn.
As our species and governing laws evolve, perhaps over the next five hundred years or so, we will perhaps come to use friendlier words like “petitioner,” “respondent” (terms used in some appellate courts) or “friend one,” “friend two” (terms never used, and available for use!) Until that far-flung time, we do best to take these words non-literally, to be worn as ill but loose fitting garments, borrowed for a brief period and singular purpose.
III. Filing for Divorce, a Few Additional Considerations, Submitting the Pleadings, Service and Timeline Costs
Costs to prepare and submit the pleadings include two factors: professional fees and court fees. The attorney who prepares and presents the pleadings will frequently provide a set rate or flat fee for this service. This cost will vary by attorney but is often a separate amount, independent of the amount of billable time required, and is a figure the attorney can provide upfront. Fees for preparing the pleadings vary based on the billing rates of individual professionals, the complexity, and the number of forms required in each state.
It is important to note that the court revises and adds additional forms from time to time. The filing attorney will work with the clients and the court to ensure submissions are modified as needed to meet the changing standards (which occasionally change during a submission). Different clerks review the submissions, so occasionally, one clerk will reject a form that was wholly acceptable to every other clerk. The filing professional will manage these idiosyncrasies, but your cooperation and patience are most appreciated when, for example, an additional signature is required on a revised form.
Uncontested Filing Fees
The court fees, also called filing fees, are set by the court and available on the courts’ websites. Charges are linked to the specific document filed. One document may cost $50, another $25, and another $0. The fees are required, and amount to several hundred dollars in an uncontested NY or NJ divorce. Uncontested divorces are somewhat streamlined, generally requiring fewer documents, so court fees are less. The enormous savings in uncontested divorces are due to eschewing extensive litigations, that require hours of attorney time both in drafting lengthy submissions, appearing in court, and meeting court requirements such as formal discovery.
The current court fees in New Jersey are under $400; in New York, they are under $500. The court assigns a docket (NJ) or index (NY) number, and the case enters the legal system to be reviewed by a court clerk and then a judge. The granting of a Judgment of Divorce signifies the conclusion of the process, and its date is synonymous with the day on which the parties are legally divorced.
In the event a party fails to uphold the agreement or has a significant change in circumstances affecting their ability to comply, either party can Motion the court to enforce or modify the agreement, respectively. Notably, the court will have the authority to enforce the agreement if either party fails to uphold their end. Should either party seek the court’s intervention, the court shall have authority to address the matter. In every situation, a party seeking relief of any kind will have to formally submit a Motion (a variety of specific documents, including back-up documentation) to the court. The court does not automatically intervene of its own accord.
In mediated, uncontested divorces, parties are encouraged to return to mediation to resolve any future disputes, before seeking court intervention. Most issues can be effectively resolved in mediation for a fraction of the cost.
Process service or service of divorce papers can be a dramatic and unnecessarily traumatic event in a traditional divorce. Often represented in theatrical fiction with a chap dressed as a bush jumping out of the hedges and alarming and embarrassing an unexpecting party, usually going about their business among work colleagues or family, exclaiming “You’ve been served!” This is something to which we give a hard pass and opt out of entirely.
Divorce is stressful enough, we needn’t have process servers putting parties in fear of cardiac arrest.
In lieu of “serving” a client with papers, we opt for an egalitarian and transparent process. The mediation attorney works with both clients in the same open and collaborative manner in which the mediation was conducted. Both parties receive all documents at the same time -- regardless of whose signature is required where and which party is the identified plaintiff or defendant. The filing is a fluid extension of the mediation, and the comfort and care developed during the mediation sessions can support this more sterile and sometimes Kafkaesque portion of the process.
Timeline and electronic filing — fortunately/unfortunately
Once the pleadings and required fees are in the hands of the court, patience and follow-up are both required, not necessarily in equal measure. One outcome of the COVID crisis is that both New York and New Jersey courts accept electronic filing for divorces. Prior to COVID, the courts required the original documents with wet signatures. With electronic filing, spouses can sign forms, scan, and email them to the attorney, rather than mailing originals, which must then be mailed to the court, and so forth. The drawback is that the electronic filing system is still fairly new for matrimonial filings, thus there are some kinks, delays, and complications as courts adjust to and continue to refine this new system.
Once the filing has been submitted, clients may wish to set a tickler in their calendars to check back with their filing professional after about 8 weeks. The filing attorney and the clients can reach out to the court for status updates and to ensure the process is moving along. In New Jersey, the processing time varies, but is generally a couple of months. In New York, particularly in Manhattan, the processing time can take up to a year given their substantial backlog of uncontested divorces awaiting processing.