Settlement vs. Trial in Divorce

When getting a divorce in NJ, cases will usually go one of two ways – settlement or trial. Both have their benefits as well as their drawbacks, and it can be difficult to decide which avenue is the right one for you. The good thing is, attempting settlement does not preclude your right to go to trial, so it’s advisable to always try settling first. Below are some things to be aware of when deciding whether to settle or litigate in a divorce in NJ.

Early Settlement Programs

First, the opportunity to attempt settlement is unavoidable when getting a divorce in NJ. Many parties prefer to reach a consensus among themselves or ask their attorneys to do the heavy lifting on the asset division. The vast majority of cases are settled amicably without the need to proceed to trial. This can be attributed to the Early Settlement Panel program adopted by the Family Court in New Jersey. These panels have at least two experienced family lawyers. Once the judge has decided to refer the case to the Early Settlement, both parties and their attorneys are required to attend. They must cooperate and provide financial information for the panel to review. The panel can only make a recommendation as to the financial aspect of a divorce, so it is crucial that each party discloses an accurate picture of their financial status, including income, expenses, debts, and assets. If the parties do not comply with these requirements, they face potential sanctions in the form of payment of other party’s attorney fees or even dismissal in the party's pleading.

One of the major benefits of attending an ESP is that it gives the party's the chance to have a low-risk, objective assessment of the merits of their case. It allows them to see how the presiding judge might rule on some of the issues. The panel will issue a nonbinding recommendation that the parties can either rely upon or use as a starting point for future dispute resolution. Furthermore, some counties allow ‘blue ribbon panels’ for parties getting a divorce in NJ.

Mandatory Post Early Settlement Panels – Economic Mediation

If cases remain unsettled after the ESP, then they will be referred the Economic Mediation. The parties and their attorneys shall agree upon a mediator within a statewide, court-approved database. The litigants must participate in the program for no more than two hours, which are free of charge to the litigants. After that, participation is voluntary, but also will cost the parties money. Mediation can be highly effective. The mediators are highly skilled in negotiating with parties, particularly in the emotional aspects of divorce. Mediation is far less expensive and occupies far less of the litigants' time in resolving their divorce. If at the end of mediation, a Memorandum of Understanding is issued. Mediations are largely confidential, and the parties can negotiate their positions with little risk. What is said in mediation stays in mediation and is not told the Judge. If the parties cannot resolve their dispute out of court, then a trial is inevitable to finalize the divorce in NJ.

What is a Trial Like?

It usually takes a year for a case to get to trial. The judge will require the parties to submit various documents in a pre-trial order. Usually, the parties must draft a trial brief outlining the arguments and facts of their case, witness list, exhibits, and stipulations. On the day of trial, or perhaps even a few weeks before, some judges will meet with the clients to offer them one last chance to settle. If trial appears inevitable, here is a basic overview of what to expect in a trial for divorce in NJ.

First, the person who originally filed the complaint will get to present their case first. Their lawyer might offer an opening statement, or they may just call the first witness (which is usually the plaintiff). The lawyer will question the witness, attempt to introduce evidence, and the defendant’s attorney will make objections as appropriate (or not!). Once that witness has finished testifying, the other side will get to cross-examine them. This can be a very stressful time of the trial for these witnesses because that attorney’s job is to cast doubt upon their credibility. The good thing is, their own attorney will have the chance to redirect, which is when they have the opportunity to clarify something they meant or explain an answer to an uncomfortable question on cross-examination. This same procedure will happen for all witnesses the plaintiff calls. Then, the defendant will get to present their case in the exact same way. The parties might be entitled to have closing arguments, depending on the judge, but very often they are written ‘summations.’ These are drafted artfully, arguing again why the party should get the relief they are requesting.

Sometimes, parties are surprised that trials last more than a day, and the days are not consecutive. Trials can often spread over a few weeks or even months. This can contribute to the cost of litigation because attorneys have to prepare for trial multiple times in a month. Once the summations have been submitted, the judge will not issue a verdict directly. Often, it takes several weeks or months to receive a decision. Trials are not quick or inexpensive. They can be unpredictable and uncontrollable. However, if the parties absolutely cannot reach an agreement, or there are hurt feelings in need of closure, they can be the only way to conclude a divorce.

If you want a competent and experienced attorney on your side in your divorce in NJ, whether you settle or go to trial, contact Peter Van Aulen for a free initial consultation today: 201-845-7400.

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