United States: There Are Rules In The Family Part? What You Talkin' About Willis?

Last Updated: September 1 2015
Article by Robert A. Epstein

Oftentimes, and with good reason, attorneys proclaim that family law litigation is akin to litigating in the proverbial "wild west", where anything goes and rules mean little more to practicing attorneys than the paper on which they are written.  This appears to be even more so in the "non-dissolution" part (non-married couples embroiled in custody and support matters), where litigants frequently are not represented by legal counsel.  Family part judges admirably and exhaustively do everything they can to keep us in line, but it is practically impossible to keep up, and litigants are literally dared into filing costly motions to address everything from document production deficiencies, assorted deliberate delays that inure to the other party's benefit, and various other rule violations.

As a result, a case that would typically take a few months, or, at worst, a year to bring to conclusion (in a normal divorce matter) may take more than two years, three years, and more.  I was recently speaking to a lawyer involved in a nine year-old divorce matter (yes, nine years – don't pass out) and trial is just beginning this month.  Aside from the troubling notion that, after nine years the matter could not settle and the marital estate was decimated by legal fees, one can only imagine the rules that were likely disregarded in bringing a matter to conclusion after almost a decade.  Of course, neither party/counsel believes it is his or her own actions that brought the matter such a point, which is often how  cases end up in unenviable situations.

Only confirming that notion, a few months ago I sat in on a seminar where the speaker – a New Jersey federal district judge – described various different types of litigation based on how the rules are written, followed and enforced.  At the top of the judge's totem pole was federal court litigation, where he described how attorneys are almost always professional to each other, respectful to the bench, and follow the court rules as closely as possible.  Next was state court law division litigation, which he described as involving lawyers who are a little less professional to each other, a little less respectful to the judiciary, and follow the court rules a little less closely.

The judge ended the comparisons there, but I could not help but think about where family law litigation would fall on the totem pole...perhaps buried in the foundation underground?  This is no more apparent than when it comes to the existence and compliance with rules in the family part.

Believe it or not, the Rules Governing the Courts for the State of New Jersey contain an entire section specifically devoted to family law practice – Part V – Rules Governing Practice in the Chancery Division, Family Part.  It even contains an entire section of the appendix devoted to the child support guidelines.  The family part rules address everything from filing complaints, addressing custody matters, determining child support, selecting experts, guardianship matters, juvenile proceedings and more.  In addition, other Parts throughout the rule book apply to family law practice, such as discovery, appeals, service of process, summary judgment applications and more.

While there are many rules that fill up many pages in the rule book, they seem to be infrequently followed by attorneys, for what may be a variety of reasons (both intentional or otherwise).  In fact, many family law practitioners express disbelief when an adversary may be seeking to follow the rules, especially as to the timing of a matter (discovery exchange deadlines, a selected "track", the completion of expert reports, and the like).

Granting extensions of time as a professional courtesy is something that all attorneys should strive to do as often as possible, but here I am referring to something completely different.  What I am referring to expands well beyond that realm, where rule followers are often inaccurately portrayed as inflexible and insistent on litigation rather than settlement, even though the goal is to simply move the matter forward to conclusion through an amicable resolution or trial.  Letters flow fast and furious to trial judges asking for more time on everything and anything over the other attorney's objection.  Delays occur.  Months pass.  Then maybe a year or more.  The case is nowhere closer to resolution then it was in the beginning, and now the issue is placed in the lap of an already over-calendared and over-worked trial judge tasked with bringing the case back on the rails because the attorneys could not, or would not keep it under control.

I was going to provide a few examples to highlight what I am talking about, but the practitioners reading this entry have been through various iterations of this many times before in their own professional experiences.  One recent example, though, that is illustrative of the problem was when I was recently compelled to file a motion to address the other party's refusal to provide certain documents that were undoubtedly relevant and should have been produced in the normal course of discovery.  The other party simply would not comply, but still opposed the motion by proclaiming that the motion was entirely unnecessary and an effort by my client to ramp up litigation – even though I still did not have the documents.  Lo and behold, and in classic family law practice fashion, a large box of documents from the other party arrived at my office doorstep on the evening before we were scheduled to be in court on the motion.  When speaking to my adversary in court the next morning, I sarcastically commented on how shocking it was to receive the documents from her client on the eve of the court date, to which she similarly responded in turn, "yes, quite shocking."  The eleventh hour production provided her client with an opportunity to argue that he had complied and that there was no issue at all, thus forcing the judge to consider whether my client's claim was legitimate.

Ultimately, there is no moral of the story here, but it is undoubtedly the litigants who suffer the consequences from an emotional and financial standpoint in the form of a lengthy and costly family law proceeding.  In the end, it is these litigants who likely have no experience with the legal system, nor a knowledge of the law, that are left sounding like Arnold Drummond when rules are broken with reckless abandon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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