By Partner T. Sandberg Durst
Sandy Durst, Esq., is a partner with the Princeton firm of Lynch, Osborne, Gilmore & Durst, and LLC where he heads the Family Law Department. Individuals facing a divorce benefit from the combination of legal skill, common sense and compassion that Sandy brings to each and every matter. Each case is given the personalized attention it deserves.
As in any litigation, attorneys for a matrimonial client must follow the New Jersey statutes on Divorce, the Rules governing the Courts of the State of New Jersey and the Rules of Evidence. In order to obtain any meaningful discovery with regard to assets, liabilities and income, time is needed between the initial filing of the complaint and the date for a trial. After complying with the statute in determining the cause of action for divorce, and once a divorce complaint has been filed, the client has committed to beginning the process. Once the complaint is filed the cause of action can be set aside and the real work begins.
Obtaining the appropriate financial information through the preparation and exchange of Case Information Statements and Interrogatories is a critical step in the divorce process. A Case Information Statement (CIS) is a financial statement which sets forth 1) income; 2) deductions from income such as federal, state and social security taxes; 3) monthly expenses for shelter (i.e. rent or mortgage payments, homeowners or renter’s insurance, utilities), automobile expenses (i.e. car loan payments, gasoline, utilities, maintenance) and personal expenses (i.e. food, clothing, non-reimbursed medical, etc.); 4) assets and their values and; 5) debts and their balances. The CIS is a “living” document which will need be updated and supplemented as more information becomes available.
Interrogatories are written questions that must be answered by your spouse under oath with regard to any financial issues in the divorce case. Many times requests are made within the interrogatories to attach documents such as bank or brokerage statements, financial statements from a business, appraisals of property, tax returns and experts reports. In order to make a fair and reasonable settlement, all of the facts and finances must be disclosed.
Once the required financial information is disclosed through the Case Information Statement and Interrogatories, a decision must be made as to whether depositions should be taken. Depositions are questions asked of your spouse, he or she will be placed under oath and a court reporter transcribes everything that is said. Since they are taken under oath deposition transcripts may be used in court as a statement by a party. Depositions of parties or of experts may be taken as a matter of course as to all issues except for those relating to the cause of action for divorce. Experts are often needed to give their opinion of the value of an asset. Experts are used to value real estate, pension plans and businesses and to make custody/parenting time recalculations. A client must work with their attorney to obtain the best expert possible in their particular case because an expert’s opinion of the value of an asset will need to stand up to cross examination at a divorce trial. It takes time and money to obtain an expert’s report in any particular area, and this should be discussed with the client as soon as possible in every divorce case.
After discovery is completed, it may be helpful for the parties to sit down together with their attorneys at a four-way conference. A four-way conference is a meeting among the two parties and two attorneys usually at one of the attorney’s offices. This is an informal meeting for the purpose of addressing and discussing the issues involved in the case with the goal of moving closer to a settlement. Many times questions may be answered that are not obvious from responses on a Case Information Statement or Interrogatories. If a four-way conference is not appropriate or if the conference fails to end in a settlement, the next step is the Early Settlement Panel.
The Early Settlement Panel consists of two attorneys whose practice is largely dedicated to matrimonial law. The panelists are provided with a Memorandum of the issues involved in the case, as well as with a Case Information Statement and any other financial information the attorney for each party deems appropriate by each side. The panel meets with the two attorneys to determine the issues and their arguments. At that point, the attorneys leave the room and the panelists review the information submitted to them along with the positions of both sides and come up with a non-binding recommendation. This recommendation is relayed by the panelists to the two attorneys and their clients. If this process leads to a settlement, the divorce may be placed on the record that day. If this process does not lead to a settlement, a mediation date, an Intense settlement conference dates for the trial will be scheduled.
The divorce process takes about one year. If the parties are able to assist in the process, and if the attorneys work through the discovery process and obtain all of the information needed to come up with a proposed settlement, the case should settle without the need of a trial. If, on the other hand, there are issues of fact which must be determined by a court, or if there is a question of fraud or incorrect financial information, a trial will be necessary.
