Double Standard for Family Law Cases in New Jersey

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.

FM Motions

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.

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