Divorce: Time to Change How the Game Is Played

Posted: November 11th, 2015 by

Lisa Shapson, The Legal Intelligencer (online)

I love it when I am asked by a matrimonial client, “What is the best way to ‘beat the system’?”‘ Obviously, the best way to “beat the system” in the divorce process is to sidestep it completely and settle all aspects of the case without entering a courtroom.

New Jersey’s procedural rules are designed to ensure that family law parties navigate the system as efficiently as possible. The procedure requires all parties involved in divorce or support actions to file a case information statement, or CIS, at the onset of the case. The CIS is a certified pleading that summarizes current joint incomes, year-to-date incomes for each party, monthly expenses during the marriage and at the time the CIS is being filed, along with a list of the family’s assets and liabilities. These comprehensive snapshots of the case are the most important filings as they present a clear understanding of the financial circumstances and marital lifestyle of the parties and serve as a springboard for requesting discovery, especially when there are discrepancies between the statements.

Unfortunately, the requirement for filing the CIS is 20 days after the answer to the complaint is filed or by the deadline listed in the case management order, which is often before any discovery response deadline. So, in some cases, exchanging CIS forms right away can be very helpful because they serve as outlines for the attorneys to exchange documentation and facilitate settlement before any court deadline. However, in cases where financial issues are complex or the information is solely in the possession of one party, that first CIS is most likely incomplete and may not be as helpful to resolving your case as quickly as you, or your client, would like.

All in all, putting everything on paper up front as required in New Jersey family law cases involving financial issues is a great strategy to getting those issues out in the open . The only problem is that by the time CIS forms are exchanged, the parties are also required–yes, required–to pay their attorneys to propound discovery requests. Not only do they have to prepare and respond to discovery, but they also need to prepare for the Matrimonial Early Settlement Panel (MESP), which is a conference used for discussing and, hopefully, settling the case. It is also unfortunate that this procedure does not always allow enough time in a case to sit back, sit down and try to resolve it because everyone is too busy with discovery requests and preparing for the MESP. That being said, to me, the MESP is the most wonderful aspect about practicing in New Jersey. The MESP is generally scheduled within four to seven months after a divorce complaint is filed and parties leave the MESP with a settlement recommendation and a trial date. Since trial dates are usually scheduled within 60 days of the MESP in most New Jersey counties, attorneys either utilize the recommendation as a framework to settle the case or prepare for trial.

Although New Jersey has a great method for resolving cases quickly through their courts, it comes with a price. Because several pleadings need to be prepared and filed prior to exchanging discovery, the average New Jersey divorce client spends a lot of money moving through the process before any discovery can be exchanged. For the spouse who is in the dark about the financial aspects of the marriage, this can be a very expensive way to find out what they own. In my practice, the majority of divorce cases in New Jersey have settled either just before or right after the MESP–so the program works if you can afford to keep a lawyer involved long enough to get there.

In Pennsylvania, filing a divorce complaint does not ignite a list of procedural deadlines that attorneys are required to meet at the outset. Arguably, this is why divorces in Pennsylvania take longer: the divorce filing rules are not always adhered to or enforced, at least in some local counties, so there is no momentum. On the other hand, from the perspective of an attorney practicing in both states, getting divorced in Pennsylvania is, oftentimes, cheaper because the courts do not demand formal attorney involvement to move the case forward. Attorneys have time to request financial documentation informally and then have a chance to meet without having to charge clients large fees to propound formal discovery and attend case management conferences. This method makes the process less adversarial than having to follow New Jersey’s procedural rules, but the obvious flip side is that there is no incentive for the uncooperative litigant to provide documentation and move the process forward.

While New Jersey procedure can move too fast, critics of the process in Pennsylvania say it moves too slowly, to the point of encouraging or rewarding the spouse who does not want a divorce. As lawyers, should we change how the game is played? The answer must be a resounding yes. When the modern no-fault divorce statute was enacted in New Jersey in 1971 (1980 in Pennsylvania), divorce was one of those words that was spoken in a soft, embarrassing whisper. Even today, some of the larger local firms do not have a family law department, although I’d like to think it’s less from shame and more from the point of family law not being as profitable as other practice areas. Divorce is now discussed openly among celebrities on social networking sites, including comments on how their divorce is being handled–whether responsibly, or not. Words like “uncoupling” have entered our vocabulary. Collaboration, i.e., attorneys and parties working together with the assistance of experts in related fields of financial planning and family/child therapy, is the newest movement in divorce law and it is time for our procedural processes to catch up with the collaborative law effort.

Procedure is obviously required in all jurisdictions to assist those who represent themselves or to move cases forward that need the extra push, but the procedural process needs to be made less adversarial from the start. In most mediated cases, the mediation process starts out with an initial meeting with the couple and the mediator. From there, each party is sent home from mediation with their “homework” of what financial and income information is needed for the next mediation session. Some mediators require each party to also prepare an estimated budget, much like the monthly income analysis of New Jersey’s CIS, to bring to the next session. At the second session, budgets are compared and support is discussed. Financial documents are also reviewed and the marital asset and liability pieces are prepared from those documents. This way, the parties are, in essence, working together to prepare a joint family CIS. With a jointly prepared document, there can be no future argument that the budget is inaccurate or unfair or that alimony requests are unreasonable. If the parties have children and the custody schedule is unresolved, mediators can also address child custody issues. The point of the various mediation sessions are to resolve, or at least limit, the issues in controversy. For cases where there is an outstanding issue, the mediator may be able to make a recommendation to the court for review and determination.

Clearly, if the legal process would  mimic the mediation process from the start–where all aspects of the case are out in the open–the conversation between the parties would get started earlier and get them uncoupled faster. The system where one party is able to use the other or the children as pawns in their personal game of chess must end.

Reprinted with permission from the NOVEMBER 11, 2015 issue of THE LEGAL INTELLIGENCER (online). © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.

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