Who Gets The House?

Mar 07, 2014

The formal New Jersey divorce process begins when one spouse files a divorce complaint with the family court. Once the complaint is filed, the other party has 35 days to file an answer to the complaint. If an answer is not filed, then the complaining spouse could file a request to enter default judgment along with a proposed final judgment. A default hearing would then take place, and if the other party does not appear, a default judgment will be entered on behalf of the complaining spouse. This means that at least the part of the complaint requesting a divorce will be granted. In a published opinion, a New Jersey family court recently considered whether other relief that the complaining spouse is seeking, such as a specific property division proposal, will also be granted in the default judgment.

            In Clementi v. Clementi, a default judgment was entered on behalf of the wife after the husband failed to respond to the complaint or to appear at the default hearing. In her proposed final judgment, the wife requested sole ownership of the marital home, which was mortgage-free and worth $200,000. The court held, however, that even when a New Jersey divorce is granted by a default judgment, the complaining spouse is not automatically entitled to receive the marital assets requested in her proposal.

            When deciding how marital property should be equitably distributed, the court must consider all of the factors delineated in N.J.S.A. 2A:34-23.1, the last factor being “any other factor which the court may deem relevant.” The court in Clementi explained that, even after a default judgment is entered in a divorce, all of the factors must still be considered for purposes of equitable distribution; however, the last factor can, and should, include consideration of the defendant’s failure to oppose the complaining spouse’s requests.

            Further, the court explained that when deciding equitable distribution, the court may analyze all of the evidence provided by the complaining spouse, and does not need to speculate as to what the other party might have offered as evidence had he provided an answer to the court or appeared at the default hearing to oppose the request.

            Because this decision came out of the Family Part and not an appellate court, it does not have any precedential effect, so other courts are not bound to follow it. However, it does still provide guidance to parties in New Jersey divorce proceedings.

            First, if you are the non-complaining spouse in the divorce action, do your very best to avoid default judgment, especially if you and your spouse have marital property. Even though failing to respond and appear may not be determinative of the distribution of your property, it can, and likely will, be used as a factor against you when the court determines how your marital property will be distributed between you and your spouse.

            Second, if you do go into a default judgment, you do not necessarily need to fear that your spouse will automatically receive absolutely everything that he or she requested. The court will still likely consider all of the factors in the statute and simply use your default as a factor against you. However, you should still appear at the hearing to, at the very least, try to present evidence for how the marital assets should be distributed. This is especially important because the court will not need to, and likely will not, speculate as to what evidence you might have brought forward had you bothered to respond to the pleadings or appear at the hearing.

            The best way to avoid any of the problems associated with a default divorce judgment is to start working with an experienced New Jersey divorce lawyer as soon as you are served with a divorce complaint. A skilled New Jersey divorce lawyer will be able to help you through all of the legal issues involved in your New Jersey divorce, will make sure your answer is filed on time, and will avoid going to default judgment in order to make sure you are given a fair shake by the family court when it comes time to determine how the marital property is divided.

    If you are looking for an experienced New Jersey divorce lawyer to help you through your divorce, please contact Sarno da Costa D’Aniello Maceri LLC at 973-274-5200.