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Paul N. Mirabelli, Esq

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Paul N. Mirabelli, Esq

Key Takeaways:

  • It is very uncommon for New Jersey Courts to overturn Orders having to do with the division of property or the allocation of debts.
  • When the Court does make these modifications, it is almost always in cases where there was fraud or misrepresentation of assets/properties/Debts.
  • Clients can hire and fire attorneys whenever they would like. You can switch attorneys at any point during the divorce process, and do not have to hire the same attorney to represent you in your modification as the one who represented you in your divorce.
  • Parties who do not agree with requests for modification can oppose them through the Court process.

In New Jersey, there’s a strong public policy against modifying agreements that are voluntarily made between parties.

As such, it is very unusual for a Court to overturn any distribution of property. This is called equitable distribution. The only time that the Court may consider overturning this division of property order is if there is a very compelling reason, which would usually involve some type of fraud or misrepresentation as to the parties’ assets or their debts.

If a party does not fully disclose an asset and that asset is later discovered, that is a clear basis for the Court to modify any type of order with respect to the division of assets. However, that sort of case is very unusual and has to be proved by “clear and convincing evidence”.

Most of the time, the Courts will not modify distribution of assets or allocation of debts.

Must The Same Attorney Who Handled A Divorce Also Assist In The Modification, Or Can I Hire A New Attorney?

Certainly, you have the right to replace your attorney at any time. You can even replace your attorney in the middle of a divorce case if you’re not happy with their work or you believe that your relationship with the attorney has broken down. A client can change attorneys at any time.

Notably, these decisions are always up to the client. An attorney cannot force a client to allow them to continue to represent them. As I always tell clients my clients, the clients are the boss. So, as a client, what you say is what controls the situation in terms of who represents you as an attorney. Attorneys are supposed to properly advise clients, but the clients have to make the final decision.

What Is The Process To Modify A Divorce Decree?

Typically, the first step to modifying a divorce decree is to try to come to some mutual agreement to modify a final judgment of divorce between the parties.

If that is unsuccessful, the next step is to try to resolve it through mediation. There are many Court-certified mediators that the parties can go to try to resolve whatever differences they have.

If none of these efforts are successful, then your recourse is to go to Court. In that case, the first step is to file a motion seeking a modification of your Final Judgment of Divorce. Your modification will usually be over matters like child support, alimony, custody, or visitation.

If the matter has to do with custody or visitation, then the Judge will first refer the matter to a custody and visitation mediation service. These services are typically run by trained social workers, and the process usually does not involve either party’s attorney, so as to be less adversarial.

If the modification request has to do with child support or alimony, the Court will typically refer the matter to economic mediation. This is a process where the parties can either agree on an attorney that will be the mediator, or, if the parties cannot agree, the Court will appoint someone to be the economic mediator.

Once a mediator is chosen or appointed, the parties are ordered to go through the process of economic mediation. They are also ordered to act in good faith to attempt to resolve whatever their financial issues are.

If economic mediation is not successful, then the matter will be referred back to the Court, at which time there will be a plenary hearing. Plenary hearings are generally held at this juncture because the Court will typically not make these types of decisions based upon the parties’ written certifications. They are going to want to hear testimony from both parties and any experts that the parties seek to engage.

Then, after that, the Court will render a Decision, and whatever Decision the Court renders will be final.

There is also a second option instead of going to a plenary hearing. The parties may agree to go to binding arbitration. During binding arbitration, an attorney will be appointed as the arbitrator, but otherwise the process looks somewhat similar to mediation.

Parties usually elect to participate in arbitration because the costs are lower than the costs associated with a plenary hearing. Also, plenary hearings tend to take a longer time than binding arbitration, because the parties are constrained by what the Judge’s schedule is at any given time.

When you have arbitration, the arbitrator is getting paid by the parties by the hour. As a result, it is easier to schedule the hearings required for a binding arbitration, and to have the hearings go from start to finish without interruptions.

Can A Request Or Petition To Modify A Decree Be Challenged Or Opposed In Court?

A request or petition to modify a decree can absolutely be challenged or opposed in Court. In essence, that’s a large part of the whole process.

One person will initiate the request in an attempt to get some type of modification, whether it is alimony, child support, custody, or visitation. Unless the parties are successful through mediation to obtain agreed upon modification, the other side certainly will oppose the request.

If you file a Motion, there is a specific set of rules that apply. For example:

  • The first party that files the Motion has to file and give the other party 24 days’ notice prior to the case being heard.
  • The party that’s responding has to respond within 16 days prior to the hearing being heard.
  • The party that initiated the Motion has the last reply, and that has to be submitted 8 days prior to the final hearing.

For more information on Modification Of Asset Division In New Jersey, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 733-2830 today.

Attorney Paul Mirabelli

(732) 733-2830