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Stacey D. Kerr
Attorney at Law
650 Washington Street, Suite 1C
Toms River, NJ 08753
Phone: 732 736-8100
Double Standard for Family Law Cases in New Jersey
Parents in New Jersey are afforded a separate legal process depending on whether they are married or not. New Jersey has long utilized a separate docket for unmarried parents litigating custody and support issues (“FD” Docket) as opposed to married parents litigating those same issues (“FM” Docket). This resulted in the de facto disparate treatment of unmarried parent litigants.
Prior to September, 2011, after filing a Complaint under the FD Docket, unmarried litigants with a child in common were directed to summary proceedings utilizing mandatory “case conferences” (also known as custody and parenting time mediation). If the case conference did not successfully resolve the issues between the parties, they were then afforded an opportunity to plead their case to the Judge. Often, the case was rescheduled to a new date to be heard by the Judge. The Judge usually only had an opportunity to review the Complaint document which contained minimal information regarding the issues before the parties. The Judge would then have to glean through each party’s oral argument the facts of the case. Many times, a litigant would raise issues during the oral argument without providing the other party any advance notice or ability to question or refute those issues. Clearly, this raises substantial Due Process concerns.
A married parent filing under the “FM” Docket must comply with the New Jersey Rules of Court when filing an application for relief (specifically Rule 5:5-4). If a party is requesting the establishment or modification of a support obligation, they are required to file a Case Information Statement pursuant to Rule 5:5-2. The Case Information Statement is a financial document that comprehensively sets forth each party’s income, expenses, assets and liabilities.
Motions filed by married parents under the “FM” Docket are scheduled pursuant to a strict scheduling time frame pursuant to Rule 5:5-4(c) and are usually scheduled to be heard within a month of the filing date. The motion pleadings must contain a Certification from the litigant setting forth, in detail, the basis for the requested relief. Each side is afforded twenty-five double-spaced pages to make their arguments pursuant to Rule 5:5-4(b). The Certification will contain attachments to substantiate claims made therein. If a party fails to raise an issue or make an assertion in their Certification, they are not permitted to raise it at the oral argument. Many Judges will issue a “tentative decision” pursuant to Rule 5:5-4(e) prior to oral argument. If the parties do not accept the Judge’s tentative decision, they are permitted to renew their request for oral argument. The Judge will issue a decision after reviewing the parties’ respective filings and oral argument, if permitted.
Judicial Directive #08-11
On September 2, 2011, the Administrative Office of the Courts issued Judicial Directive #08-11 titled, “Family – Non-Dissolution Matters (FD Docket) – Revised Procedures.” This Judicial Directive was supplemented on November 18, 2011. These Judicial Directives (hereinafter collectively referred to as the “Directive”) essentially formalized the de facto procedure for addressing FD Motions and required all litigants and attorneys filing under the FD Docket to use the uniform forms attached to the Directive. Among other requirements, the Directive required that all FD cases would “be initially processed as Summary actions, with additional discovery at the discretion of the judge.” This meant that all FD Motions would not be governed by the procedural requirements of FM Motions under Rule 5:5-4 and Rule 1:6-2.
For an excellent summary of the Constitutional dilemmas created by this Directive, please review Ronald G. Lieberman, Esq.’s piece, “A Critical Review of Our Current FD Process is Warranted,” located in New Jersey Family Lawyer magazine, Volume 33, No. 4 – February, 2013 (available here: http://www.highroadsolution.com/file_uploader2/files/familylawv33n4feb2013.pdf)
The Directive created a mandatory “screening process” to determine which, if any, complementary dispute resolution methods would be utilized prior to the matter being heard by the Judge. Normally, this means the cases are referred to parenting time mediation or “consent conferences.” These mediation sessions are handled by court staff trained in Family Mediation to address and help resolve the parties’ issues. One significant difference between traditional mediation and “consent conferences” is that the “consent conferences” are not confidential. While “consent conferences” are utilized in FM matters during the pendency of the divorce litigation if the parties are unable to resolve custody and parenting time issues, in FD Matters, these “consent conferences” are often automatically used for all FD matters. The basis for this screening and complementary dispute resolution is to reduce the burden on the FD Court due to the high volume of pro se litigants.
Potential Financial Detriment to Unmarried Litigants with a Child in Common
Since FD Motions are classified as summary proceedings, there is no need for a formal Case Information Statement (CIS) to be filed by either party if financial support is an issue. Instead, the parties are required to file a Financial Statement for Summary Support Proceedings. These summary statements include basic information about the litigant’s income. The parties are not required to file their most recent tax returns or their three most recent pay stubs with this summary statement; instead they are instructed to bring those documents with them to the hearing. This does not permit the other party to review any financial documents ahead of time and, therefore, affords that party no opportunity to respond or refute those documents. Additionally, since neither party has to file a CIS, it is significantly more difficult for the Court, or the parties, to determine if the case warrants a deviation from the Child Support Guidelines. Unlike a CIS, the Summary Statement does not contain a recitation of the parties’ (and children’s) monthly expenses, assets or liabilities. Therefore, if one party has significant assets of which the other party is unaware, but minimal income, the Court may inadvertently fail to include those assets in a determination of that party’s child support obligation. Thus, the child is directly harmed by the resulting reduced child support calculation.
Different Time Frames/Deadlines for Unmarried Litigants with a Child in Common
One significant divergence between FD and FM motions which the Directive formalized was the filing deadlines for applications. As set forth above, FM Motions must be filed pursuant to the time constraints set forth in Rule 5:5-4(c). However, since FD Motions are no longer under the purview of Rule 5:5-4 and are, instead, “summary proceedings.” The FD Motion Packet attached to the Directive establishes the following time frame for responding to such a motion, “Your written response must be filed with the court ten calendar days after being served this application/cross application.” While this may appear to be a reasonable time frame, practically speaking, it can wreak havoc on the FD process.
First, the date of service can be difficult to ascertain. While the Directive requires FD Motions to adhere to the service requirements set forth in Rule 5:4-4 (essentially requiring applications be served via regular mail and Certified Mail Return Receipt Requested), it can be difficult to determine when the other party was actually served with the papers. If a party does not sign for the Certified Mail, there will be no specific date of service on that party, even if the regular mail was properly mailed to them. One quick answer would be to utilize Rule 1:3-3 which states, in part, if a party is served by regular mail, “3 days shall be added” to the “period of time after the service thereof within which to take some action.” (Makes sense, right?) This means a party would have to mail the documents three days earlier than the deadline for service, to ensure the other party received the documents as of the deadline. In FM Matters, this is a simple matter of arithmetic. If a cross-motion is due fifteen days before the hearing date, the cross-motion must be mailed at least eighteen days prior to the hearing date. In FD matters, this calculation is inapplicable, since the time frame starts after the service is effectuated. It can be argued that the time frame commences three days after application/cross-application is mailed via regular mail (provided the Certified Mail is unclaimed). However, this calculation fails to address the reasoning behind the issuance of the Directive: addressing the practicalities of a high volume of pro se litigants. This can cause unnecessary delays when both litigants have filed paperwork with the Court and, if a judge is to adhere to the filing requirements of the Directive, the judge will have to determine when the filing party mailed the application and determine if the responding party filed thirteen days after this mailing. While this should be relatively easy for a judge to determine, it only creates an additional and unnecessary procedural step for the Court to consider and review prior to addressing the substantive issues. Additionally, in some rare circumstances, there may be a legitimate issue of material fact regarding this which would, technically, require the Judge to hold a plenary hearing, or mini trial, as to that issue. The Judge would have to take testimony and make credibility findings as to each witness.
Second, FM Motion deadlines are calculated backwards from the date of the hearing. This means a cross-motion is due fifteen days before the motion hearing and a response is due eight days before the motion hearing. The FM motion hearing can be adjourned (for example, to allow a recently retained attorney the time to prepare an adequate response) and the deadlines would be extended to coincide with the new motion hearing date. In FD cases, if an attorney is retained after (or shortly before the expiration of) the ten day deadline to file responsive papers, the Directive’s plain language indicates any responsive papers filed by that attorney would be out of time. This is, on its face, unfair to litigants attempting to obtain representation in FD matters. As a result, FM litigants are afforded an opportunity to obtain counsel, adjourn and respond to a motion hearing within time while FD litigants are not afforded such an opportunity.
From a practical point, judges recognize these issues and, usually, permit the filing of papers that would otherwise be “out of time” pursuant to the Directive. Judges are permitted this latitude pursuant to Rule 1:1-2, which allows the court to relax or dispense with a court rule if adherence to the rule would result in “injustice.” The most glaring problem with relying on Rule 1:1-2 to alleviate the myriad problems created by the uniform procedures set forth in the Directive is that it completely undermines the Directive. Litigants and attorneys who follow the Directive verbatim are now left in a position where the other party, who does not, is afforded an opportunity to participate in the litigant without complying with the procedural requirements meant to make the system more efficient. The only result is that the system becomes less efficient as judges determine whether or not to adhere to the Directive on a case by case basis. Additionally, FM litigants are afforded more procedural protections, and by extension a fairer result, than their FD counterparts. The creation of this two-tier legal system is unjust and is a disservice to the principles of the New Jersey judicial system.
What Can Be Done?
What can be done? The Administrative Office of the Courts should vacate Judicial Directive #08-11 and the Supplement to Directive #08-11. The Courts should utilize Rule 5:5-4 and 5:5-2 when hearing motions under the FD Docket. Parties should be required to file fully executed Case Information Statements with their initial motion papers if support is an issue, pursuant to Rule 5:5-2. The screening process can still divert litigants to complementary dispute resolution when custody and parenting time (or a simple child support calculation) is an issue, as this should greatly reduce the burden on the FD Courts which the Directive was attempted to address. Indeed, this mandatory complementary dispute resolution may be appropriate in FM motions dealing with custody, parenting time and child support as well. This would put married litigants with children and unmarried litigants with children on an identical procedural footing. This would eliminate or greatly reduce the disparate treatment of unmarried litigants with children, while at the same time alleviating some of the strain on the judicial calendar by referring these cases to complementary dispute resolution before they are heard by the Court.
As an aside, it appears some courts have unilaterally modified the “uniform” forms included in the Directive. I have received FD Motion packets from the courthouse whose filing deadlines are in conformance with Rule 5:5-4(c) (and therefore identical to FM Motion deadlines). This technique, although in direct contravention to the Directive, appears to be an attempt to afford some semblance of equal protection for litigants filing under the FD Docket.
Think about therapy
The divorce process is stressful and confusing. Divorcing a spouse is often said to be as stressful as the death of a loved one. When spouses argue about issues of custody, support and dividing their marital assets and liabilities, it is easy for one or both to be overwhelmed. This stress and anxiety very often carries over to the children of the divorcing parties.
Ideally, both divorcing spouses will have strong social support networks in the form of family, friends and even coworkers. Each spouse will have trusted people with whom they can talk freely and openly about the emotions, conflicts and realities of the situation. Hopefully, this support network will serve as more than the proverbial “peanut gallery” serving only to badmouth the other spouse and give unwarranted and often misguided legal advice. The support network works best when they are able to provide a shoulder to lean on and an ear to listen.
Unfortunately, in many cases, divorcing spouses do not have a strong support network or their support network is not readily accessible due to logistical issues (family or friends living far away, busy day-to-day activities rendering a supporting family member unable to available at a moment’s notice, etc.) In these situations, it may be appropriate for the divorcing spouse to seek the assistance of a family therapist. The therapist will be able to provide their professional assistance from a neutral and unbiased, yet supportive and helpful, point of view.
Even if a party has a strong support network, therapy may be helpful. Many times, well-meaning family members and friends will attempt to cheer up the divorcing spouse by bad-mouthing the other party or encouraging the divorcing spouse to make the litigation as long and drawn out as possible to punish the other party. This advice, while tempting, is never helpful. It only serves to focus the issues negatively towards the other party. This is not conducive to an amicable and expeditious settlement of the divorce litigation. Fortunately, the therapist will not participate in these tactics. The therapist will instead focus on the party’s mental and emotional state of mind. The party and their therapist will work towards minimizing the stress and anxiety of the divorce process rather than blaming the other party.
The parties should also consider utilizing therapeutic or counseling services for their children. Regardless of the age of the children, their parents’ divorce will be extremely stressful. While it is helpful for parents to minimize the arguments in front of their children and to not speak about the divorce process to their children, it is almost impossible to completely shelter the children from knowing what is going on between their parents. Providing the children with a neutral outlet to discuss their conflicting emotions by having them participate in therapy can be a great resource in minimizing the detrimental effects of the divorce on the children. A child, who may feel pressured into picking a parent’s side, will have a neutral adult to talk to about such conflicting feelings. The child will learn coping mechanisms and effective emotional management techniques to deal with the divorce.
Family therapy is another great resource for divorcing spouses with children. This type of therapy acknowledges that parties with children will have to remain in each other’s lives forever. Even when the children are grown and out of the house, the divorced parents will still have to interact with one another during holidays and special occasions (such as the child’s wedding). By establishing a civil dialogue early in the divorce process, the parties will be in the habit of communicating clearly and without malice, at least regarding their children.
In many cases, utilizing the services of a therapist or a counselor in addition to an existing social support network will enable the parties and their children to weather the storm of the divorce much easier than if those resources are not utilized. This will also help reduce the time and expense of protracted litigation as both parties will be focusing on an amicable resolution instead of punishing the other party for the breakdown of their marriage. Finally, the therapist will help the party keep the children out of the litigation and conflict, which will be immeasurably helpful in maintaining, and even growing, the child’s self-esteem, conflict resolution skills, and interpersonal relationship skills.
Contact your attorney to get the names of recommended therapists and see if this course of action is right for you.
Link to the Center for Disease Control’s summary of marriages as compared to divorces and annulments. It is interesting to note that, apparently, divorces and annulments have been in decline from 2000 to 2011 (although the data excludes certain states such as California and Indiana).
10 Things you should do in anticipation of filing for a divorce
So you are contemplating divorce and are probably experiencing conflicting emotions. The feeling of anxiety and uncertainty can be overwhelming and you want to know how to proceed. There are many different ways people handle the stress of a divorce. In many cases, a married couple has been together for years and their assets and liabilities are completely interwoven. They share real estate, bank accounts, mortgages, bills and credit cards. This blog entry will attempt to provide you a quick and easy guide to some immediate steps you can take once you choose to file for divorce. This post will focus more on the financial aspect and we will address issues related to children in more detail in a future blog entry.
1. Know what you have.
One of the first things an attorney will ask you regarding your divorce is, “What assets and liabilities do you and your spouse have?” In many cases, one spouse will handle all of the financial issues of the marriage while the other spouse will handle other issues. This can leave one spouse unable to answer that basic question. This is usually a result of innocuous division of “labor” rather than an overt attempt to conceal assets, but the end result is that one spouse can be in the dark about what the parties actually own.
Start by making a list of all assets (real estate, retirement accounts, bank accounts, investment accounts, vehicles, insurance policies, etc.) that you can remember. Add to this list as you recall other assets. You can review pay stubs (to show deductions for retirement plans, for example) and tax returns (to show investment properties or other sources of income). You can also search your county clerk’s web site for recorded deed and mortgage documentation.
Request a free credit report from www.annualcreditreport.com. You are entitled to a free credit report each year. This web site is managed by three of the major credit reporting agencies pursuant to the “Fair and Accurate Credit Transactions Act” (FACTA). Obtaining a credit report will enable you to see what, if any, debts are in your name.
2. Make copies of all important documents.
In some cases, a spouse (incorrectly) believes they will get the upper hand by hiding information from the other spouse. The only result of this conduct is that both parties will have to pay their respective attorneys unnecessary legal fees to confirm what would otherwise be obvious (usually with the intervention of the Court). To avoid litigating this issue, you should have back-up copies of your important documentation.
Make copies of the following documents:
Your attorney may be able to subpoena much of the above information on your behalf. However, that will increase your attorney fees. Therefore, it is a good idea to be organized and spend time gathering these documents prior to meeting with your attorney.
3. Print out recent statements of all assets and liabilities.
This is related to #3 above, but warrants its own discussion. Once the divorce litigation or settlement negotiations (or both) commence, you and your spouse will need to have accurate information regarding your assets and liabilities. Therefore, you will need to have the documentation to show the values for these items.
Print out the most recent statements for all assets and liabilities listed in Paragraph 2. Since, in pretty much every case, the marital estate concludes at the filing of the Complaint for Divorce, having account information just prior to this date will be helpful, especially if one spouse goes on a spending spree just before the divorce litigation.
4. Change your passwords.
Many times the stress of the divorce causes people to behave irrationally. As a precaution, you should change your individual e-mail, bank account, social media and other related passwords. Hopefully it will be a non-issue and, since these are your own personal accounts and not joint accounts, your other spouse will probably not even be aware of the change.
In this age of social media, you will also want to consider making your Facebook (and other social media) pages private. Be careful with what you post online. A good rule of thumb is to assume that anything you post online can and will be found by your soon-to-be ex. Even if you have the strictest privacy settings on your Facebook page, you and your spouse may share friends who can notify them of any irresponsible or inappropriate material on your Facebook profile.
Additionally, even if you are careful with what you post, you must also be vigilant about monitoring pictures and comments in which are you are tagged. This will also ensure the children are not privy to, and affected by, their parents’ conduct and comments since most children over the age of thirteen utilize social media.
5. Inventory and protect cash and valuables.
Cash cannot be traced and can be easily dissipated without any records. As such, if you or your spouse have a significant amount of cash, you should document it and protect it. The easiest way to protect it is to deposit it into a bank account and hold it until a later date. If you are uncomfortable with that for whatever reason, you can always deposit the cash in your attorney’s Trust Account. The funds will then be held in escrow until a future agreement is reached between you and your spouse or a Court Order.
If you own valuables, such as jewelry or collectibles, you should inventory and take pictures of them. These are much harder to track than bank accounts (where records are automatically generated). It is better to have a list of all of these items (along with corresponding pictures) at the outset of your case.
6. Rely on your support network.
Divorce is one of the most stressful times in person’s life. Unfortunately, the Courts, and the legal system at large, are unable to help you emotionally get through this difficult time. Reach out to close friends and family members. They will be an invaluable crutch during this time.
Often, a spouse can be alienated from their friends and family during a marriage, either intentionally or unintentionally. While this is unfortunate, the good news is that they will usually be more than welcoming once you reestablish communication.
You may also want to consider therapy or counseling to help you cope with the divorce. While your attorney can lend an ear to the emotional turmoil you may be feeling, but they are not trained to be your counselor. If your case is especially contentious, it will be helpful to have a neutral person with whom you can discuss the emotional aspect of your divorce.
7. Start gathering documentation.
There will be a lot of paperwork you will be requested to provide to your attorney in a divorce proceeding. Many of these documents will be at your fingertips, either in your records or available online. However, some of the documentation may take time to locate and prepare. Start now so as to avoid delays later on.
Gather the following:
i. Deeds to real property, mortgages, Home Equity Lines of Credit, etc.
ii. Purchase agreements for cars, trucks, boats, etc.
iii. Stocks, bonds and other investment documentation
iv. Appraisals for valuables (jewelry, collectibles, paintings, etc.)
v. Insurance policy or policies
3. Proof of liabilities
i. Credit card debt (even closed accounts that still have balances)
ii. Student loan debt
iii. Utilities (if you are behind)
iv. Mortgage (if you are behind)
4. Employment history
i. Does one spouse have special training that they are not using?
ii. Did one spouse intentionally earn less in the year preceding the divorce as part of divorce planning?
iii. Did a spouse change careers to show a lower income?
iv. You can obtain a Social Security Earnings Statement to show your historical earnings. These statements are prepared by the Social Security Administration (SSA) and are available for download free of charge at this address:
5. Medical history
i. Does one party have a disability that prevents or limits them from working?
ii. Does a party have a history of mental illness?
iii. Does a party have a substance abuse problem? (any DWI’s?)
6. Business records
i. If one spouse (or both) has a business, you will need the business records related to that business. You may have to conduct a business valuation or a cash flow analysis to determine the spouse’s income potential as well as the value of the business. Discuss these issues with your attorney. Any documentation you have regarding the business related to transactions, inventory, accounts, etc., will be helpful.
8. Monitor bank accounts, credit cards, lines of credit, etc.
Even though the legal end of the marriage, for the purposes of equitable distribution, is the date of the filing of the Complaint for Divorce, this legal deadline does not give a party carte blanche to rack up enormous expenses immediately prior to the filing of the Complaint. However, it may be difficult to recoup money or assets that a spouse dissipates prior to or during the divorce litigation. While the other spouse would have recourse in the Courts, from a practical and cost-effective perspective, it is much better to stop such behavior before it starts than to recoup the funds at a later date.
Keep track of your bank records, credit card purchases, home equity lines of credit and other sources of funds. If an account is in your name, make sure you have access to the records (online, by phone, or through the mail). If you are especially concerned about your spouse dissipating a particular account, you should discuss this issue with an attorney immediately, as judicial relief may be the only way to prevent (or minimize) the damage your spouse is causing.
9. Remain civil and don’t involve the children in your conflict.
It is obviously common for divorcing spouses to get into frequent arguments. It is unfortunately equally common for those arguments to involve the children, either directly or indirectly. This must be avoided. There are countless research articles outlining the adverse effects of involving children in a contentious divorce. (link here). There are also many articles discussing the minimal effects of divorce on children whose parents do not involve them in the arguments or who otherwise minimize the children’s role in the separation and divorce litigation.
By mutually agreeing to avoid dragging the children in to the litigation, to not use them as pawns or messengers, and to not discuss the litigation with the children, the divorcing parents are creating a dynamic which allows the children to maintain a semblance of normality and to focus their efforts on adjusting to the concept of having two different homes. Children are resilient and will adjust to this new parenting dynamic, so long as the parents maintain their composure and don’t place the children in the middle of the disputes.
If the divorcing spouses want to have a relatively quick and painless divorce as possible, as most parties claim, they will also need to maintain civility with each other. There will be disputes and, most likely, heated arguments, about the separation; however it is important to remember that these arguments only serve to prolong the litigation and cause one or both parties to become entrenched in their positions rather than attempt to negotiate an amicable settlement. If the goal is truly to resolve the divorce and move on with your life as quickly, amicably, and cost-effectively as possible, that goal must be in the forefront of your mind at all times.
Clearly, these actions are easier said than done. However, with a little effort and by keeping the children in mind, it is possible to end a marriage and, at the same time, remain respectful and effective parents to the child, as well as respectful and civil to each other.
10. Contact an attorney.
Every divorce case is different and unique. The problem arises when you attempt to shoehorn your unique set of facts and circumstances into the statutory and legal requirements of the Courts. While New Jersey Family Courts are courts of equity, meaning their goal is to implement a fair and reasonable result after reviewing all of the circumstances of the case, the Judge’s hands are often tied by the current state of the law.
You should discuss your legal rights with an attorney. Your attorney will be able to guide you through the judicial process, which is often daunting and confusing. Perhaps more importantly, your attorney will also help guide you to reach an amicable settlement to your divorce without the necessity of an emotionally and financially draining trial. Almost every case settles and every case should settle.
Your attorney will be able to give you legal advice about how to handle specific issues pertaining to your case. They will be able to file the appropriate action in Court if there is an immediate issue. They will also be able to help you sort through your financial situation and help you establish your new post-divorce life.
Welcome to the new blog. We will discuss issues related to custody, parenting time, child support, alimony (also known as “spousal support”), equitable distribution and other issues related to divorce in New Jersey.
Please note, any entries, comments, or other information on this site is for informational purposes only and should not be construed as legal advice. The views and opinions contained on this web site are the author’s personal opinions and comments. If you have a legal issue, you should contact an attorney.
Please feel free to visit our main web page at: http://www.OceanCountyDivorce.com.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Content copyright 2017. The Law Office of Kerr & Thomlison, L.L.C., All rights reserved.