What Happens When a Third Party Joins a Divorce Proceeding?
Divorce is complex process. It is typically conceived as a legal matter involving only two parties, the married partners. However, in many cases, divorce impacts parties beyond the two spouses and their children. Grandparents, siblings, trustees, and organizations may also have vested interest in the outcome of divorce.
If the courts find legitimate cause to add a third-party, they do so through a contract called a “joinder.” The purpose of adding a third party is to streamline the proceedings by avoiding multiple claims. While joinders in divorce are less common than they are in business and financial proceedings, there are a few scenarios when a third party is added to divorce.
What Is a “Joinder” and How Does it Function?
In family law cases and other civil cases, either party can ask the court to “join” a person or entity into their case. If the court “joins” them, they become a party to the case. Until they are officially added to proceedings, the court does not have jurisdiction to address matters that involve them.
A joinder agreement is the legal contract that effectively brings all of the parties together. Joinders are used in various legal scenarios beyond divorce and there are generally classified in two ways:
Mandatory or Compulsory Joinder
A mandatory joinder requires certain parties to be joined, based on certain criteria listed in the Federal Rule of Civil Procedure 19. Most commonly, the courts add a third-party if they are unable to protect their interests without being joined.
In divorce matters where custody and visitation of a minor child is being disputed, joinder of any third-party who already has custody and/or visitation or is claiming these rights is mandatory.
The majority of joinder in divorce cases are permissive, meaning the court has the discretion to decide if it is necessary and appropriate to add a third party to the proceedings. A permissive joinder allows for multiple plaintiffs if their claims are related to the same transaction and a common body of law applies to all of these claims.
While it is common for third parties to have an interest in divorce proceedings, it is not always necessary or mandatory for the court to join all parties. To determine if a joinder is necessary to add a third-party to proceedings, the court considers a few factors:
- Whether it is appropriate to add the third-party to determine a specific issue in the proceeding
- Whether the third-party is essential to the determination or enforcement of an issue
- Whether joinder would interfere, delay, or over-complicate divorce proceedings
Child Custody and Visitation
When both parents are fit and able to parent, the courts prefer to award them child custody. If one or both is unable or unavailable to assume custody for whatever reason, the courts may award these rights to a third-party like a guardian, grandparent, or sibling.
When a third-party has assumed the physical, emotional, and financial responsibilities of parenting a child, they are considered the “psychological parent.” Because the psychological parent has a vested interest in custody and visitation proceedings, they would most likely be added as a third party.
For some couples, the husband may not be the biological father of the child. If it is proven via a DNA test that the husband is not the biological father, the biological father can be added as a third party. During divorce proceedings, when the husband is not the biological father, the biological father will be named as the father for child support and custody purposes.
If the mother’s husband assumes the parental role and acts as the “psychological parent,” child custody matters can become more complex. It could be said he has a vested interested in custody and visitation as well. Regardless, it is likely that the biological father is considered an additional party in the couple’s divorce.
In some cases, a third-party person, business, or organization claims interest in jointly-held property that is subject to distribution in the divorce proceeding. If one spouse owns 40 percent of a business, that 40 percent is considered joint property. The business can petition to join the divorce to protect its interests.
Disputes over other accounts and income may require third-party joinder. If one spouse’s employee benefits plan is in dispute, the plan is required to join the proceedings. This allows the court to issue an enforceable court order against it.
Some couples have conflict over the status of certain trust assets. One party may argue that trust income or assets are marital property. However, assets in a separate property trust generally considered to retain their separate status, unless the source of the funds comes from marital income.
There are also many different types of trusts, which makes distributing these assets a bit more complicated. In this scenario, the third-party trustee may be added to divorce proceedings to assist in resolving issues related to trusts.
What Rights Does the Third-Party Have?
One spouse, the other spouse, or the third-party can petition the court for joinder. Once the third-party officially joins divorce proceedings, they retain the right to protect their interests by filing motions and pleadings. They can take depositions, issue discovery, present evidence, and call and question witnesses, just as each spouse can.
If you have questions about whether a third-party joinder makes sense for your divorce, or you want to petition to join another legal proceeding, contact an attorney near you for guidance.
Marlton Divorce Lawyers at Goldstein & Mignogna, P.A., Help Third-Parties Protect Their Interests During Divorce
If you are divorcing and believe a third-party joinder is necessary. If you are a third-party seeking to claim interest in property, or pursue child custody, we can help. Our experienced Marlton divorce lawyers with Goldstein & Mignogna, P.A., understand the complexities of family law and are committed to helping you achieve a good outcome for your legal matter. Call 856-890-9400 or contact us online to make an appointment to discuss your case and explore your legal options. Located in Marlton, our team proudly serves clients across the state of New Jersey including but not limited to South Jersey, Burlington County, Camden County, and Gloucester County.