Divorce Dispute Resolution 101
by Bruce P. Matez, Esq. APM
It is a fact: more than 98% of all divorces filed in the state of New Jersey are settled before trial. 98+%!!!
If you’re divorcing, there is less than a 2% chance that your divorce will be tried to conclusion before a judge. That means the overwhelming likelihood is that you will never have that oft talked about “day in court.” The staggering odds are that if you’re divorcing, you and your spouse will ultimately settle the issues related to your divorce. What really matters most is the method you and your spouse choose to reach that settlement. Here’s a brief overview of your options:
In this traditional process one spouse files a complaint for divorce with the court, personally serves that complaint on the other spouse, and the other responds formally. The court enters a case management order determining the time period for exchange of documents and information, called “discovery”, which is normally approximately 120 days. During that time period thousands of dollars are incurred for legal fees to prepare and exchange discovery, prepare and file case information statements, and possibly on pendente lite (pending litigation) motions to address temporary issues such as custody, parenting time, and support while the divorce is pending. At the conclusion of the discovery period a Matrimonial Early Settlement Panel (MESP) is conducted, which is basically a very brief non-binding arbitration wherein the panelists give the spouses a recommendation for settlement. If the matter does not settle at or immediately after the MESP, the spouses are required to attend post-MESP mandatory economic mediation before trial. Often the spouses pay thousands, sometimes tens of thousands, of dollars in legal fees to get to the MESP. Ultimately, if they do not settle, a trial is scheduled. The court’s directive and goal are to move spouses toward settlement before trial. Often judges require spouses and their attorneys to appear in court for various settlement conferences before trial. Litigation is usually extremely expensive financially and takes an emotional and mental health toll on the spouses and their families, including young children and adult children. Also, in litigation the court, attorneys, and spouses are restrained and restricted by the law, legal procedures, Rules of Court, and Rules of Evidence. Litigation of a divorce can often take a year or more to complete.
Spouses work through the issues related to their divorce with a trained and experienced mediator. The mediator facilitates discussion of the disputed issues and assists the spouses toward finding a fair and reasonable resolution about which both are comfortable. Mediators make suggestions for resolution, offer ideas and creative solutions, but do not generally make recommendations. Mediation allows spouses to formulate a resolution that works for them and their family and maintain control over their future, instead of giving that control to a judge. Spouses may meet with the mediator on their own, or they may include attorneys in their mediation sessions. Some spouses retain attorneys for advice and consultation through the mediation process but do not have the attorneys participate in sessions. Mediation is intended to meet the needs, goals, and interests of the spouses. Mediation utilizes creativity and outside-the-box ideas and is not necessarily restricted by the law, and is most definitely not restricted or restrained by legal procedure, Rules of Court, or Rules of Evidence. At the conclusion of a mediation, if an agreement has been reached, the mediator will draft a Memorandum of Understanding or a marital settlement agreement (aka property settlement agreement). There are different styles of mediation and mediators. For more information about these styles, read our blog, “Types of Mediation.”
- Collaborative Divorce
The spouses each hire formally trained collaborative attorneys and, potentially, a divorce coach. The spouses, attorneys, and coach (if used) meet in a series of meetings to exchange documents and information, discuss all issues needing to be resolved, and work toward a resolution that is fair, reasonable, and equitable to the spouses. The spouses, attorneys and other engaged professionals work together as a team in a problem-solving manner as opposed to the attorneys and spouses acting as adversaries. The attorneys serve as advocates for the clients and for the collaborative process. Full disclosure of information and documentation can be assured through the cooperation of both spouses in the collaborative process. Everything occurs in the meetings, avoiding the often caustic and expensive exchange of letters and emails that often plague the litigation process. If the spouses reach an agreement, the attorneys will draft a marital settlement agreement which the spouses will then sign and then one may file a complaint for divorce and proceed uncontested to obtain a final judgment of divorce from the court.
- The “Kitchen Table” Divorce
Some divorcing spouses are able to sit down together privately and work out a settlement that works for them without lawyers, mediators, or other professionals. One spouse then takes that agreement to a lawyer to have a formal marital settlement agreement (aka property settlement agreement) drafted. Typically, the lawyer will then send the agreement to the other spouse or his/her attorney to review. It is then signed, one of the spouses can then file a complaint for divorce and proceed to obtain a final judgment of divorce uncontested by the other.
- Negotiation by Attorneys
In some instances, spouses will retain attorneys to represent them in negotiating a settlement before any lawsuit for divorce is filed with the court. Attorneys can exchange documents and information, doing “discovery” informally, and negotiate through letters, emails, or meetings with the spouses (commonly called four-way meetings).
- Binding Arbitration
As an alternative to litigation through the court, when spouses are unable to resolve their disputes and it is necessary to have a third party decide for them, some opt out of the court system and submit their dispute to binding arbitration. The spouses with their attorneys, or on their own if they do not have attorneys, determine what rules will apply to their arbitration, hire an experienced divorce and family law attorney or retired judge as their arbitrator, and ultimately submit the issues in dispute to the arbitrator for a decision. This can be done in a formal hearing similar to a court trial, or through stipulated submission of facts, documents, and other information to the arbitrator, or a combination of both. An arbitration can be exactly like a formal trial or abbreviated in many different ways, and tailored to the spouse’s needs and wishes, as long as they comply with the rules and procedures governing the arbitration process. Trials in court often span months due to the court’s schedule. Wherein consecutive trial dates are virtually unheard of in the court system, often binding arbitration can occur on consecutive dates and in far shorter time frame than a court trial. Binding arbitration can be more efficient and cost effective for many reasons, even though the spouses are paying the arbitrator. The spouses and attorneys have more control over the process and can assure that they retain an arbitrator who has significant experience and knowledge of the law. Often, judges are appointed to the bench with no experience in handling divorce or family law matters, some without any trial experience, and they learn as they go.
A Final Note
It’s important to note that the court does not review marital settlement agreements signed by spouses and does not make fairness determinations, nor approve or disapprove of settlements. The judge must only make a finding that the spouses entered into the agreement voluntarily, of his/her own free will, and understood his/her rights to have the court try the issues and make a judicial determination. The court does not interfere with the rights of the spouses to engage in self-determination and encourages settlement.
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For more information about the options available for dispute resolution of divorce and family law matters, call BorgerMatez, P.A. at 856-424-3444 or contact us with this form for a consultation with one of our attorneys, all of whom have more than 30 years of experience.