By Eric Solotoff and Sandra Fava
Many clients believe that if they file for divorce, the road to resolution is litigation and a trial. While that may be the final step if a settlement is not reached, divorce trials are quite uncommon in New Jersey. In fact, in most years, only 2% – 3% of cases are tried. Of those, many settle during the trial or on the proverbial courthouse steps.
The system is designed with many opportunities to push matters toward settlement. One family court judge has expressed pride that she has never had a trial. While that might not be ideal because some cases need a judicial decision, the reality is that settlement is the desired goal. Clients are more likely to be satisfied and there is less post-judgment litigation when parties settle matters themselves.
There are settlement processes built into the divorce system. The first is mandatory custody and parenting-time mediation. If the parties have children who are not emancipated and there is no written agreement settling custody and parenting-time, this mediation is required. Although this mediation is typically handled by court staff without attorneys present, parties should prepare for it with their attorney before attending.
There is also a mandatory Early Settlement Panel (ESP) for financial issues. This generally takes place after the discovery process is complete. Discovery is the exchange of financial and other information and expert reports such as business valuations and real estate appraisals. For the ESP, your case is presented to a panel of two or three experienced matrimonial attorneys who volunteer their time to help settle cases. After reading the written submissions and hearing from counsel, the panelists provide non-binding and confidential settlement recommendations (i.e., the judge doesn’t get to know about them.) There are “Blue-Ribbon Panels” with more experienced attorneys as mediators for more complex cases.
If the case isn’t settled at ESP, the next step is mandatory economic mediation for which the first two hours are free. Mediation is a longer format before a neutral who tries to help you settle your case. For complex cases, sometimes we try to bypass ESP and go right to mediation. You don’t need to wait for ESP to go to mediation; you can go at any time by agreement.
If the case is not settled after ESP, many counties have Intensive Settlement Conferences (ISC) where the parties spend the day at the courthouse with the judge trying to settle the case. Some judges require you to come back over and over, either to wear you down or because you are getting closer to resolution.
Only after all else fails, do you have a trial. As we will write in the next edition, sometimes trials are necessary, but the system provides many off-ramps to settle your case before you get to that point.
For more information on these and other questions regarding divorce in New Jersey, contact Morristown-based Fox Rothschild Family Law attorneys Eric Solotoff at esolotoff@foxrothschild.com or (973) 994-7501; or Sandra Fava at sfava@foxrothschild.com or (973) 994-7564.