In those cases in which mediation, collaborative divorce, or other alternative means of dispute resolution are not viable alternatives, spouses will litigate their divorce in the traditional manner. Typically, each will retain a lawyer to represent him/her and communication will occur between the attorneys by letter, phone or e-mail. One spouse must file a complaint for divorce with the court and the other has various options for responding. The court will then enter a case management order directing how the parties are to exchange discovery (information and documentation), and scheduling the Early Settlement Panel, pre-trial conference dates and trial dates (in some counties). Before or during the period of discovery, the spouses may also engage in “motion practice,” wherein one party may file an application (a notice of motion) with the court seeking specific relief. The most common types of motions are for pendente lite (pending litigation) relief, wherein a party seeks a temporary order to be set during the course of the litigation until a final determination is made or there is a settlement agreed upon. Often a spouse will file a pendente lite motion for temporary support or a temporary custody and parenting-time arrangement. After all discovery is exchanged between the spouses, they will be required to attend the Early Settlement Panel (ESP). The attorneys will submit memoranda to the panelists prior to the ESP date. The panelists (two experienced family law attorneys) will review the memos prior to the ESP and meet with the attorneys only on the date of the ESP. After they have discussed the case and the attorneys have presented their arguments and positions, the panelists confer privately, then bring the attorneys back into the ESP room to deliver their recommendations as to how they believe the case should be resolved. The attorneys then meet with their individual clients to discuss the recommendations. If one or both parties do not accept the recommendations, the judge will schedule the case for trial. In some counties, after the ESP, the court will order the parties to attend post-ESP mandatory economic mediation. Eventually, if the case is not resolved through mediation or negotiation, the case will be tried to conclusion and a judgment rendered by the judge. Litigation is generally extremely costly. The goal of the court is to have a case tried to conclusion and a judgment of divorce entered within one year of the date that the complaint was filed.
Mediation involves parties in a dispute retaining a neutral & trained mediator to serve as a facilitator to assist them in reaching a settlement of the issues in dispute in a safe and amicable setting. Parties (divorcing couples and others) meet together with the mediator, often on a weekly or bi-weekly basis. During mediation sessions the parties negotiate directly with one another in the presence of the mediator who facilitates the discussions and negotiations, without imposing his/her opinions on the parties or advocating for either. The mediator keeps the parties focused on the issues being discussed and makes sure they address all of the issues which require resolution in their dispute (divorce or other family law matter). Mediation may involve experts or other professionals such as forensic accountants, real estate appraisers, psychologists who serve as custody and parenting-time experts, or others as are necessary and appropriate. Some mediators will allow attorneys to participate in mediation sessions. In appropriate situations, a coach may also be involved outside of the mediation sessions in order to assist the parties navigate through the emotional turmoil and devastation of divorce or other family law disputes.
Although many mediators are attorneys with family law experience, the mediator does not represent either spouse and should not give any legal advice to the parties. It is recommended that the parties meet with an attorney first to gain an understanding of New Jersey law as it pertains to their specific situation. In mediation parties are not bound by the law, but can fashion their own settlement terms without regard to what a judge might impose upon them based on the law after trial. This gives parties the freedom to create an agreement that meets their needs and the needs of their entire family, free from the restraints of the law. A mediator should not recommend resolutions which he/she thinks are appropriate, but may make suggestions for the parties to consider. The parties in mediation have all of the power to reach a settlement and it is what they believe and determine to be fair and reasonable that matters, not what the mediator believes to be fair.
If the parties reach an agreement through mediation, either on all or some issues, the mediator will draft a memorandum of understanding or settlement agreement which memorializes the settlement terms. Parties are encouraged to have independent attorneys draft or review the agreement on their behalf. Mediators cannot represent either party in court, and therefore, cannot file a complaint for divorce on behalf of either or both parties.
Mediation may not be an appropriate means of dispute resolution if there is an imbalance of negotiating power between the parties, where there are psychological issues with one or both parties, subtle intimidation by one against the other, where there has been as history of domestic abuse, or other issues.
Mediation is an excellent means of resolving disputes in most situations. It can be far less expensive than the traditional litigation model, especially in divorces. It can help the parties maintain an amicable relationship, craft a resolution that is best for their entire family, does not only address the present circumstances (which is all the court can do), but also looks forward and addresses the future. Statistics show that parties who mediate spend less money on their divorce, feel vested in the settlement, are far less likely to engage in litigation in the future, and enjoy a healthier relationship.
Collaborative Law offers divorcing couples an alternative to litigation which is based upon mutual problem solving. The parties and their attorneys, along with other professionals involved (e.g., custody experts, forensic accountants, etc.) agree in writing to work together toward an agreement without litigating in court. Collaborative Law provides divorcing couples with a viable, meaningful, less contentious alternative to litigation which is all too often expensive, time consuming, emotionally draining and devastating to families. Gary Borger and Bruce Matez attended advanced training in December 2010 and are founding members (along with a small group of other South Jersey divorce attorneys, family therapists, and forensic accountants) of the South Jersey Collaborative Law Group (the first of its kind in the area). Deena Betze Esq. has also acquired training and is a member of the South Jersey Collaborative Law Group and the International Academy of Collaborative Professionals. BorgerMatez offers Collaborative Divorce in addition to mediation as alternatives to traditional divorce litigation for its clients.
In order for a spouse to file a complaint for divorce in New Jersey he/she must allege the specific grounds upon which the divorce is based. Grounds are the legal reasons (also called causes of action) upon which the court may grant a divorce. No-fault grounds are irreconcilable differences or living in separate residences for a period of at least 18 months. In order to allege irreconcilable differences, one must merely allege that the spouses have experienced irreconcilable differences for a period of six or more months which have caused the irretrievable breakdown of the marriage. Fault grounds include adultery, extreme cruelty, separation, voluntarily induced addiction, institutionalization for mental illness, imprisonment, desertion, habitual drunkenness or deviant sexual conduct. It is important to note that fault is not a factor which is taken into consideration in any financial issues between the parties.
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