- YOUR INITIAL DIVORCE CONSULTATION
- January 25, 2018
What grounds for divorce are available in my situation?” This is often one of the first questions asked at an initial consultation. Modern divorce practice has de-emphasized “fault”. Since 1971 the focus of the Court’s inquiry in contested cases no longer is “who is to blame”; but rather how can the children be protected, and how can income, assets and debts be distributed fairly and equitably
The focus of the first consultation is better directed at issues concerning children, maintenance of the financial status quo; and most importantly, alternative ways to resolve the existing family disputes to avoid protracted court involvement.
There are a broad range of settlement and dispute resolution options available, some of which are over-looked and never properly considered by “litigants.” These options range from the exploration of peace and reconciliation of the marriage at one end of the spectrum to all-out legal warfare resulting in a contested trial. These options are especially confusing in the early consultation stages, when there may be a swirl of emotional activity and upset.
Reconciliation Option: Even though some one seeks legal counsel, the attorney’s initial obligation is to discuss whether the marriage is in fact over. Perhaps one marital partner has admitted to having an affair. Should this automatically end the marriage, where there are young children, without any marital counseling efforts?
The Settled Case Option: This option should be considered when both parties believe they are living in an emotionally “dead” marriage, and where both wish to “move on”; especially where there is general agreement as to the resolution of the financial and child related issues. These family situations generally do not require a formalistic and legalistic approach to settle the case. All that may be necessary is for one attorney to prepare the legal papers and the Family and Property Settlement Agreement, for the other party’s review with counsel of their choosing. [Note: in New Jersey as in most other States, it is a “conflict of interest” for one attorney to represent both parties to a divorce action - and attorneys will universally refrain from attempting to do so]. Thus, where one marital partner seeks legal counsel to put in legal terms what has already been worked out by the parties relative to parenting time with the children, custody, support and division of assets and debts, the favored approach is to send a non-inflammatory letter to the other spouse, followed up by a “working draft” Family and Property Settlement Agreement. This marital agreement once modified by the other side and counsel, formalizes the global resolution of all issues in the case. The “marital dissolution” proceedings can then proceed “uncontested”; with the Court’s role focused on pronouncing the marriage over.
THE MIDDLE RANGE OF CASES
The dispute resolution protocols applicable to the majority of cases fall between the reconciliation / “settled” dispute range and flat-out contested trial litigation. Arranged in order of increasing conflict and inability of the parties to resolve their issues without intervention, this middle range includes:
(a) Mediation: is useful where there exists good will between the parties, who are able to put emotions aside and proceed in a reasonable way to resolve their dispute with the assistance of a “mediator”.
(b) Traditional Approach: This remains the standard most utilized approach for divorcing couples. Each party “lawyers up”. Parties may seek attorneys who aggressively and zealously represent the position taken by their clients; or they may seek attorneys who will focus their skills on resolving differences and suggesting imaginative alternatives. In either case counsel generally exchange settlement positions and attend four way conferences with their clients.
(i) Enlightened meetings will focus on identifying issues and coming up with a process to resolve areas of disagreement.
(ii) Unenlightened meetings will focus on which attorney“won” - who was most forceful, and whether either attorney was able to intimidate the other. Reality sometimes mirrors movie and TV reenactments of four way “conferences” with the attorneys and litigants all shouting at once, to no positive result.
Court Interventions: After several months, with the case in Court and no agreement reached, the Court will take over and begin scheduling “court event” dates. The first court event, which attorneys generally attend without their clients, is a “Case Management Conference” with the Judge assigned to preside over the case and manage the dispute. At this conference, the Judge gains a “feel of the case”, and identifies those cases requiring special attention by the Court. A “discovery” scheduling Order is prepared to provide limits to the time for discovery and to schedule future events - designed to nudge the parties towards agreement. A “parenting class” is scheduled for all litigants at the Court house to alert parents not to involve their children when divorce litigation remains unresolved. If the parties are in dispute about parenting time with their children, the Court will schedule mediation at the court house. If this is not successful the Court will generally require the parties to engage the services of a custody evaluator to assist the Court in crafting custody and parenting time plan post-divorce (where the parents are unable to agree).
Early Settlement Panels: Ocean County attorneys were very active in the mid-1970s in exploring creative approaches to assist the Court in resolving cases. The “Early Settlement Panel” process was created in Morris and adopted early on in Ocean and Monmouth Counties as a way to break negotiating log-jams and assisting the parties and counsel in coming to terms on issues that must be resolved before the Court will allow divorce litigation to end. The “ESP” program is an informal proceeding at the County Court House. The program is regarded as successful and for many years has been implemented state-wide. One or two attorneys not familiar with the issues in the case, receive pre-hearing statements from each side, and meet with the parties and counsel in an effort to resolve the dispute. The Panel is not paid. The attorneys volunteer their time; they are considered to be neutral, and have no stake in the outcome. The Panel is selected from experienced members of the Bar. The Panel’s recommendations are non-binding, but frequently result in the settlement of cases or the freeing up of negotiations that have ossified and become purely positional.
Ultimately the Court will set a Trial Date, unless the matter spontaneously settles or is otherwise conducted out of the court-process via Arbitration or other Dispute Resolution intervention. Prior to commencement of Trial, the Judge assigned will try to settle the case. Ultimately the case will be tried.
Less than THREE [3%] PERCENT of cases are tried to completion. The converse statement is that 97% of cases settle. As one Family Court judge was fond of stating: “most cases take about two hours to settle. You can either do it early on, or at trial. The emotional and financial cost gets higher as the case becomes more protracted.”
Trial is an emotionally and financially burdensome process; often without a clear resolution, since there is an absolute right of Appeal from any decision by the Trial Court; (which may further postpone final decision in the case for an additional year), on top of the year or more required to obtain a final decision from the Trial Court. Generally there are three or four judges assigned to divorce cases in each County plus two or three judges who handle post-divorce issues.
The Trial Court’s Calendar: Family Judges preside over nearly 2,000 divorce cases per year in most counties. In addition they handle hundreds of emergent applications filed under the Prevention of Domestic Violence Act; and thousands of miscellaneous cases involving support and custody issues where the parties were never married - categorized as “non-dissolution” cases. On a day when a Family Judge has “non-dissolution” issues to resolve, there may be twenty or more cases on the docket - all to be handled in the 8:30 to 4:30 time span. In addition, a large fraction of divorce cases filed each year, may require the active and on-going intervention of the Court to set support, maintain the status quo, freeze assets, prevent wasteful dissipation of assets before the divorce can be heard, and set parameters involving parental access to the children. These pre-trial motions with issues that simply cannot wait till the Court has time to reach the case for trial are often exceedingly complex. These numbers should give a sense of the intense pressure Trial Judges are under to resolve large numbers of cases each year, while providing substantial justice to each. Litigants, who have spent good money to their attorneys to have their case reached for a contested trial, are often frustrated by the delay.
For more information call
William J. Rempel, Esquire
Certified By the Supreme Court
of the State of New Jersey
as a Matrimonial Law Attorney