You're almost at the finish line. After months, maybe even years or struggling with an uncooperative spouse, you are finally granted a default hearing. By this point, you've probably gone through one of the following headaches: 1) a spouse who fails to respond to the divorce complaint out of spite, or failure to understand/ accept that equitable distribution requires his or her participation; or 2) a spouse who fails to give discovery, or full disclosure of relevant information and documentation. Either situation is torturous considering the slow nature of divorce, which is largely dependent on the court's schedule. In addition, there are specific rules in place for how the courts handle a defedant's non-compliance or neglect. These rules include giving the defendant 35 days to respond to a complaint, then proposing a default judgment, which he or she is allowed to counter. Even if there's no response, a default hearing has to be scheduled in order to give the defendant one final chance to participate in the divorce process.
However you got here, what's important now is drafting that all-important proposal for a final judgment. This is usually where clients argue with their attorneys, who are bound by the law to propose a fair settlement. To clarify, the principle of equitable distribution still applies, meaning a fair and just division of your assets and liabilities. That means you can't propose a judgment in which you get the house, the cars, most or all of the money in the bank, etc. In fact, anything beyond a 50/50 division has to supported by thorough, reasonable explanations. You may also have to account for alimony depending on your spouse's finances, even if they don't “deserve” it after all the trouble they've caused.
Another bitter pill you'll have to swallow is that your spouse can still appear at the hearing and challenge you via arguments and cross-examination of your witnesses. Cross-examination is time-consuming and possibly embarrassing, but the defendant has the right to counter claims of wrong-doing. The defendant also has the right to challenge distributions that he or she believes are unfair. One bit of good news is that they cannot present their own evidence or witnesses unless it's been approved by the court ahead of time. Still, the fact that they can question your rationale and cross-examine witnesses should not be taken lightly. That's why you need to prepare for your hearing with an experienced attorney who can help you anticipate the issues that will be brought up by your spouse. They can also help you draft a distribution plan that should be acceptable to the courts, which you will need even if your spouse fails to attend the hearing. As you can see, there's still a lot of work to be done, but getting to that finish line is within your reach. For more information on default judgment hearings in New Jersey, please speak with the divorce attorneys of Villani & DeLuca, P.C.