Effective September 1, 2009, significant amendments and additions were made to the Court Rules that relate to or impact upon the practice of family law. This article highlights the new rules, provides commentary and alerts practitioners to how these changes will affect the practice of family law.
I. New Rules…New Concerns for Family Law Practitioners
R. 1:38: Access to Court Records
The previous R. 1:38, which addressed the confidentiality of court records was completely overhauled and replaced by a new R.1:38, which implements the policy of The Albin Report in favor of public access to court records.
The Family Part Practice Rules Committee’s Report on proposed R. 1:38 strenuously objected to open access to family law records to the public. Members of the Family Law Practice Committee argued before the Supreme Court that Family Part records, with limited exception, should be presumptively closed to public scrutiny, subject to individual application for opening records based upon specific criteria.
Moreover, prior to implementation of the new R. 1:38, the Family Part Practice Committee requested an opportunity to make necessary amendments to Part V of the Rules to specifically exclude public access to a majority of family part documents.
R. 1:38-1: Pursuant to this catchall Rule, all court records and administrative records are open for public inspection except as otherwise provided in this rule.
R. 1:38-2: Provides an expansively large definition of court records, which includes pleadings, motions, briefs and their respective attachments, orders, judgments, and opinions.
R. 1:38-3: Defines the limited documents not subject to review, which in the Family Part include Case Information Statements (and attachments thereto); Confidential Litigants Information Sheets[1]; medical and psychological reports and evaluations in the context of child support and custody determinations; juvenile delinquency records; domestic violence records; paternity records and reports; adoption records and reports; records of DYFS proceedings; and records of hearings on the welfare of status of a child.
This Rule does not exclude from public review any financial documents submitted by either party in connection with pleadings or motions, except to the extent those documents are attached to a Case Information Statement. The Rule also allows for public review of Pleadings, Early Settlement Panel Memorandums and Motion Certifications, all of which may include sensitive and personal information relevant only for purposes of the pending family law litigation.
As written, the Rule will allow the lives of family law litigants to be an open book for public consumption with limited exception. Moreover, it will require attorneys to redact all documents, including tax returns, K-1s, 1099s, or any other number of financial and/or personal documents which are exchanged between spouses as a matter of course in pre-trial discovery.
R. 1:38-7: This portion of the Rule puts the burden on practitioners to remove from documents submitted to the court any and all “Confidential Personal Identifiers,” which are defined as “a Social Security number, driver’s license number, vehicle plate number, insurance policy number, active financial account number or active credit card number.”
Case Information Statements must now contain a Certification that all personal identifiers have been redacted and that subsequent papers submitted to the court will not contain confidential personal identifiers.[2] Does this mean a client will be subject to punishment in the event a “personal identifier” is mistakenly included in a document submitted to the court? In any case, if such an identifier falls through the cracks, the blame will inevitably fall back upon the practitioner. Will the Rule force family law practitioners to spend less time on substance and more time on white out? Should practitioners revise their Retainer Agreements to make clear that documents submitted to the court on the client’s behalf will, with little exception, be subject to review by the public?
R. 1:38-12: Pursuant to this Rule, in the event any court document is sealed, it may be unsealed upon motion, with the burden being placed on the proponent for continued sealing to prove by a preponderance of evidence that good cause continues to exist for having the record sealed.
R. 1:40: Mediation
R. 1:40-5: This Rule addresses economic mediation in Family Part matters. As amended, the
Rule adopts several new subparts, with procedural requirements for the selection of mediators and the mediation process itself.
Pursuant to subpart two (2) of this Rule, a “credentials committee” comprised of representatives of the Supreme Court Complementary Dispute Resolution Committee is responsible for reviewing and approving mediator applications. Approval shall be granted so long as the mediators “meet the training requirements set forth under this Rule, and any other approved criteria developed by the Family Court Programs Subcommittee on the Committee on Complementary Dispute Resolution.”
New R. 1:40-12( 6) provides the requirements which must be met, as referenced in R. 1:40-5(2) for approval as an economic mediator in family part matters. Pursuant to this Rule, both attorneys and non-attorneys can qualify to serve as economic mediators in family law cases.
Attorneys can qualify to mediate family part matters if they have been admitted to the bar for at least seven (7) years, are licensed to practice in the State of New Jersey and there practice is substantially devoted to matrimonial law. Non-attorneys meet the applicable mediation requirements if they have certain advanced degrees[3] and have seven (7) years of experience in their field of expertise. Retired judges, experienced in handling dissolution matters, may also serve as mediators.
In addition to the above-referenced requirements, all prospective mediators must complete the 40 hour dispute resolution training course approved by the Administrative Office of the Courts.
The Family Part Practice Rules Committee’s Report strongly opposed the expansion of this Rule to include non-attorneys as qualified mediators in family law matters. The Committee argued that competent mediation in the Family Part requires specific legal knowledge, which only persons licensed to practice family law in the State of New Jersey possess. Ironically, under the current Rule, attorneys must have seven (7) years of experience and practice substantially matrimonial matters, while non-attorneys do not need any knowledge of the law or any experience with matrimonial matters.
The Rules’ inclusion of non-matrimonial practitioners as accepted family law mediators is in direct opposition to the position of the Family Part Practice Rules Committee and leaves open the door for nearly every type of professional to serve as a mediator in the family part.
R. 1:40-4(b): Previously, this Rule provided that either party’s failure to pay his or her share of the economic mediator’s fees could result in an order by the court “to pay and imposing appropriate sanctions.” However, this rule provided no relief to economic mediators to compensate them for the time they gave up attempting to obtain relief from the court. Pursuant to the revised Rule, the court may now enter an order requiring the party to pay “the fees and costs of the mediation including any additional costs and fees incurred due to the non-payment….”(emphasis added).
R. 1:40-4(f)(3): R. 1:40-4(f) as previously drafted required mediators to make an inquiry, prior to accepting a mediation, as to whether a conflict of interest existed or was reasonably likely to exist. A new part (f)(3) has now been added to the Rule to provide that after a case is referred to mandatory economic mediation, the court must reassign the case to a different mediator in the event either party, counsel, or the mediator represents that a conflict of interest exists. The Rule fails to address the procedure in the event a dispute arises as to whether a genuine conflict of interest exists.
5:3-5(c): Counsel Fees
Previously, this Rule allowed the court to consider “the reasonableness and good faith of the positions advanced by the parties” in determining the amount of any counsel fee award to either party. As amended, this Rule has been expanded to make clear that the court may consider the positions of the parties “both during and prior to trial.”
The Family Law Practice Committee supported language which would allow judges to consider the reasonableness of the parties’ positions both before and during trial. However, the Committee argued that language must be added to the Rule to make clear that under no circumstances should this Rule permit the disclosure to the court of settlement negotiations prior to the conclusion of trial and the rendering of a decision on the merits. The Committee argued that the only circumstances in which settlement negotiations should be disclosed to the court would be for purposes of arguing for counsel fees after a decision has already been rendered.
The Rule, as adopted, fails to include the suggested language of the Family Law Practice Committee. As a result, it remains ambiguous as to whether settlement negotiations, Early Settlement Panel Recommendations, or proposals set forth at mediation may now properly be disclosed during the course of trial. Does this Rule supercede the Rules of Evidence which preclude the disclosure of settlement negotiations?
II. Motions
R. 1:6-3: In 2007, this Rule was amended to provide that Cross Motions in family law matters, as opposed to civil and criminal matters, need not relate to the subject matter of the original Notice of Motion. However, the language was unclear. The new amendment clarifies the previously vague language and now makes clear that family part applications are excluded from the rule regarding germaneness, and Cross Motions need not be related to the subject matter of the original Motion.
R. 5:5-4(a): This Rule, which addresses Motions in this Family Part, has been amended as it relates to Motions and Cross Motions seeking entry or modification of an order for alimony or child support based on changed circumstances.
Pursuant to Lepis v. Lepis 83 N.J. 139 (1980), parties seeking to modify their support obligation had to proceed through a two (2) step process. First the moving party had to establish a prima facie case of changed circumstances. Only in the event this first step was successfully completed, would the income of the other party be considered.
Under the reasoning in Lepis, the previous R. 5:5-4(a) did not require a party opposing an application for a reduction in support to provide his or her prior or current Case Information Statements. However without a requirement that the opposing party file their prior Case Information Statement, the court was left in a position where it often lacked the necessary information to compare the financial circumstances of the parties at the time of the initial support award with the current financial circumstances of the moving party. This was especially true in those cases where the moving party’s prior Case Information Statement was incomplete or not reflective of the actual circumstances existing at the time the initial award was entered.
The current R. 5:5-4(a), as amended, now requires the party opposing an application to modify support to attach all prior Case Information Statements. With this amendment, the court will have the complete picture, from both sides, of the financial circumstances which existed at the time the initial support order was entered. However, the opposing party does not have to provide a new Case Information Statement unless, pursuant to Lepis, the court first finds that the moving party has demonstrated a prima facie showing of a substantial change of circumstances. If that burden has been met, the court will order the opposing party to file a copy of a current Case Information Statement.
5:5-4(d): Pursuant to this Rule, the Notice to Litigants must now include an additional sentence advising of that “Two copies of all motions, cross-motions, certifications and briefs shall be sent to the opposing side.”
5:5-4(g): This Rule previously provided that Exhibits to Certifications would not be counted in determining compliance with the page limit requirements for Motions set forth under R. 5:5-4(b).
To the relief of judges and practitioners on the receiving end of Motions, the Rule, as amended, now also requires that “all exhibits shall be differentiated from the text of a certification or affidavit by the use of labeled dividers before each exhibit or some other means. Where labeled dividers are used, they shall extend beyond the 8 ½ inch by 11 inch size of the paper.” In other words, Exhibits can no longer be stapled or rubber banded together to the Certification without any notation as to whether each exhibit begins and ends and with no mechanism for easy reference to one exhibit or another.
III. Procedural Updates to Note
R. 1:1-2: A new subpart (b) has been added to make clear that any reference in the Rules to the term “marriage,” “husband,” “wife,” “spouse,” or a number of other words which, in a specific context denotes a marital or spousal relationship, shall be construed to include civil unions and domestic partnerships and the persons in those relationships.
R. 1:5-6: As amended this Rule makes clear that pleadings in divorce actions which fail to have appended to them the newly required Affidavit or Certification of Notification of Complementary Dispute Resolution Alternatives required by R. 5:4-2 shall be returned “Received but Not filed.”
R. 5:2-1(a) and (b):
R. 5:2-1 sets forth the proper venue for various cases in the family part. Previously, 5:2-1(a) provided that the proper venue in those cases involving the welfare, support, protection and status of the children (except when such actions were joined as part of a divorce action) was the county where the child was domiciled. The Rule as previously drafted led to significant confusion, as it conflicted with the Uniform Interstate Family Support Act (UIFSA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), both of which have specific jurisdiction requirements in cases involving support, custody and welfare of children.
As amended, R. 5:2-1(a) provides for the governance of venue and other jurisdictional issues in cases involving the support or parentage of a child to be governed by UIFSA. R. 5:2-1(b) provides for the governance of venue and other jurisdictional issues in cases involving the welfare, custody, protection and status of a child to be governed by the UCCJEA.
R. 5:4-2(g): The Rule, which requires a Confidential Litigant Information Sheet to be amended to the initial pleading of each party, previously failed to make clear whether a copy of Confidential Litigant Information Sheet should be provided to the adversary. To alleviate any confusion over the issue, the Rule now makes clear that “no copy thereof shall be served on any opposing party.”
R. 5:4-2(h): The Rule expands upon the previous version of this Rule, which required that all initial pleadings include an Affidavit or Certification of Notification of Complementary Dispute Alternatives, to provide that this Certification must be in the from prescribed by Appendix XXVII-A or XXVII-B of the Court Rules.
R. 5:5-6: This Rule, requiring the participation of all litigants in mandatory Economic Mediation for at least two (2) hours in the event the case is not resolved at the time of the Early Settlement Panel Economic, now has an added subpart (b), which makes clear that litigants will not be charged a fee for the first two (2) hours of mediation, to include one (1) hour of preparation time by the mediator and one (1) hour of mediation. This Rule applies only in the event the litigants select a mediator from the statewide-approved list of mediators. Additionally, a new subpart (c) to this Rule provides that in the event litigants consent to mediate beyond the first (free) two (2) hours with a mediator from the statewide-approved list, the Economic Mediation Referral Order shall provide for the distribution of costs for each party for the additional hours.
As the distribution of fees is to be determined prior to the mediation itself, practitioners must now discuss with their clients at the time the Economic Mediation Referral Order is entered whether they desire to participate in mediation beyond the first two (2) free hours. Presented with this question, more litigants may opt for this free, abbreviated mediation session, which would provide for only one (1) hour total of actual time with the mediator.
The Rule, as written, presents substantial problems. As only one (1) hour of “free” time can be applied toward preparations, mediators have no incentive to review the file, regardless of its complexity, for more than one (1) hour. Moreover, the possibility of resolving a matter in a single hour of mediation is slim to none. For the mediation to be effective, the mediator needs to spend sufficient time preparing for the case—an unlikely scenario when the mediator knows he or she is not getting paid for additional work. Additionally, the litigants need to fully participate in the mediation long enough to work through each of the outstanding issues with the mediator—an impossibility in a one (1) hour time frame. The savings to litigants in receiving two (2) free hours of mediation will mean little if it results in an ineffective mediation, the breakdown of negotiations, and, ultimately a costly and time-consuming trial.
R. 5:5-10: This Rule, which sets forth the procedure and requirements for filing a Notice of Equitable in cases where default has been entered, has been expanded to now require litigants to include a proposed parenting time schedule, where applicable. Previously the Rule did not require litigants seeking relief with regard to custody and parenting time to include a specific parenting time schedule.
R. 5:6B: This Rule previously provided that all judgments and orders for child support entered “on or after the effective date of this Rule” shall provide for a Cost of Living increase every two (2) years. The Rule has been clarified to make clear that the Rule was entered on September 1, 1998. However, all orders and judgments entered prior to that date shall now “be prospectively subject to adjustment every two (2) years to reflect the cost of living.”
* John P. Paone, Jr. is a Certified Matrimonial Law Attorney and a Fellow of the American Academy of Matrimonial Lawyers. He is a former chair of the New Jersey State Bar Association’s Family Law Section. He practices law in Woodbridge, New Jersey, with the Law Offices of Paone, Zaleski & Brown. The author wishes to thank Megan S. Murray, Esq. for her assistance in the research and writing of this article.
[1] See new R. 5:5-2(f) which now provides that the “Case Information Statement and all attachments thereto shall be confidential and unavailable for public inspection.”
[2] See also R. 4:5-1(b)(3) which now requires, in compliance with R. 1:38-7 that the first filed pleading of any party in an action in the Chancery Division include a certification of compliance as required in R. 1:38-7(c) that states, “I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with R. 1:38-7(b). It is unclear whether, in family part matters, the first pleading, as well as the Case Information Statement must contain this Certification. However, the Rule as currently drafted would appear to require just that.
[3] These advanced degrees include psychology, psychiatry, social work, business, finance, accountant, or “other advanced degree deemed appropriate by the credentials committee.”
