Getting Divorced Despite the System: How to Move Your Case Forward While the Courts Are Backlogged

By: Carolyn N. Daly

A backlog in the New Jersey courts has precluded resolving all types of family law disputes—resulting in a denial of access to justice for many families. Justice delayed is truly justice denied, as anyone waiting six years to be divorced knows. The horror stories on both sides of every issue abound: litigants are evicted from their homes because the spouse party is not paying fair pendente lite (PL) support, children suffer trauma due to prolonged custody battles, etc. People are quick to blame lawyers, judges, and court staff, but the issue is far more complicated. Many of these delays are due to lingering issues from the pandemic shutdowns (which exacerbated preexisting issues in the court system, such as the judge shortage), and, unfortunately, there is no end in sight. In February of this year, Chief Justice Stuart Rabner of the New Jersey Supreme Court suspended family trials in two vicinages saying other counties may soon follow suit. And, while he just announced that trial may resume in one of those vicinages, he suspended trials in another vicinage.

In the face of this massive failure of the justice system, what options are available to those who need family law disputes resolved? The solution rests with family law attorneys willing to think outside the box.

One such solution for families is mediation; a well-known alternate or complimentary dispute resolution (ADR or CDR) process governed by R. 1:40-5 in New Jersey. In addition to mediation, there are other ADR or CDR processes available that are often overlooked or rejected largely due to a lack of understanding. Rule 1:40 of the New Jersey Court Rules governs Complimentary Dispute Resolution programs in the superior and municipal courts. The purpose of CDR programs is “… to enhance the quality and efficacy of the judicial process,” and all attorneys “have a responsibility to become familiar with available CDR programs and inform their clients of them.” Judges should also be familiar with these programs and processes so that these options can be suggested and utilized when appropriate.

R. 1:40-2 lists types of CDR processes, which include:

• Adjudicative processes: arbitration, settlement proceedings and summary jury trials
• Evaluative processes: early neutral evaluations (ENE) and neutral fact-finding (NFF)
• Facilitative process: mediation
• Hybrid-processes: combinations of any of the CDR processes

Some of these processes, such as ENEs and NFFs, are rarely used in family law. These processes, however, if used early in a case, could quickly and effectively resolve or narrow issues that would otherwise fester, further polarizing positions and making compromise and resolution impossible. For example, if the real issue in a case is not custody, but a parenting schedule and nuances that might be required to make it work, an ENE with a qualified mental health practitioner or a guardian ad litem could successfully narrow the issues or resole them, avoiding months or years of expensive discovery, evaluations and litigation. An example of using an NFF early in the process to resolve issues is when one party alleges an asset is exempt from equitable distribution, but that status is disputed by the other. An NFF could help the parties distill information and establish facts for a quicker and ultimately more cost-effective resolution.

Another underutilized ADR process in family law matters is arbitration, which is governed by R. 5:1-5. Arbitration is defined as “A process by which each party and/or its counsel presents its case to a neutral third party, who then renders a specific award. The parties may stipulate in advance of the arbitration that the award shall be binding. If not so stipulated, the provisions of Rule 4:21A-6 (entry of judgment; trial denovo) shall be applicable.”

This ADR process has many benefits, which include that it can be completed much more quickly than court proceedings, it can remain private and confidential, and the parties have much more decision-making control. Parties can decide how the process is conducted, including what rules of evidence or case law applies, the arbitration statute, when to schedule hearings and if they are in person or by video, how the record will be created, and how long the arbitrator will take to decide the issues presented. Arbitration is very effective for limited issues, time-sensitive issues, or post-judgment (after the divorce) matters that linger because courts don’t have time to hear these matters.

Arbitration can also resolve PL motions without facing the omnipresent multi-month delay in many New Jersey family courts in addressing these pressing issues. Quicker resolutions of PL motions allow parties to move on to discovery and explore other ADR alternatives to achieve a global resolution. Arbitration can be used to resolve discrete and time-sensitive issues in a case, such as the interpretation of the terms of a settlement agreement’s cohabitation or retirement clauses post-judgment. Once a decision is made on the interpretation, the parties will hopefully resolve the entire matter and move on. Arbitration is also very effective in deciding issues such as college contribution, emancipation, alimony increases, decreases or termination, and changes in the amount of child support.

Arbitration provides a solution for those concerned with a potential trial judges’ lack of experience and background in family law. Many New Jersey judges did not practice family law before becoming judges, and therefore many lack substantive knowledge of the law and experience in applying the law to these specialized, emotionally charged cases. In arbitration, the parties can choose a professional with extensive family law experience as their arbitrator, trusting that the arbitrator will correctly and predictably apply the law to the facts of the case. In addition, attorneys and litigants can decide if an arbitrator’s decision is binding or if the right of appeal to a preselected appellate arbitrator is included in the agreement or consent order to arbitrate.

Finally, although it requires parties to hire and pay an arbitrator, the financial (and emotional) costs are often less than going to court. Hiring an arbitrator can be more cost-effective for the parties because trials often result in partial and frequently interrupted days of trial with weeks or months in between, requiring attorneys to prepare over and over and driving up attorney fees.

Another thing to consider with arbitration is that matters moved into arbitration are not removed from the court’s docket entirely, so when parties move forward with arbitration, they can move their matter to the “arbitration track” by agreement or consent order “for no more than one year following the arbitration track assignment, which term may be extended by the court for good cause shown.” Cases assigned to the arbitration track are also given scheduling consideration when fixing court appearances in other matters. If the parties later decide that they mutually wish to opt out of the arbitration, the matter can be re-assigned to the most appropriate track and returned to court. Again, this means the parties are more in control of the process and outcomes rather than leaving the matter to follow the usual course track, resulting in a more efficient outcome.

In addition to a formal assignment to the arbitration track, litigants and the courts can consider short-term deviations into arbitration to timely resolve motions and other discrete issues. If parties specifically agree to enter arbitration for one motion, they should not be required to deviate into the arbitration track for a full year. The New Jersey Court Rules allow a relaxation of the rules to permit a “just determination,” “simplicity in procedure,” and the “elimination of unjustifiable expense.” In the face of massive delays, suspended trials, and unprecedented backlogs, there is every reason to permit family law matters to enter arbitration for limited purposes and limited timeframes.

Reprinted with permission from the July 9, 2023 edition of “The Legal Intelligencer” © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.