In some divorce cases, parties will have to go through litigation. This means the couple must go to court and allow a judge to make the final decision on a specific issue – such as child custody or property division. Warren family law attorney Michele E. D’Onofrio discusses various aspects of the divorce litigation process, including: how to choose the right divorce lawyer; the benefits of and ways to keep costs down during litigation; and what is discovery and a deposition. She also provides insight into alternative dispute resolution processes such as mediation and collaborative divorce.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Michele E. D’Onofrio, Family Law Attorney
Michele E. D’Onofrio is a partner of Shimalla, Wechsler, Lepp & D’Onofrio, LLP in Warren, New Jersey. Her practice has been devoted exclusively to family law for the past 20 years. Whether you’re a high-net-worth client in complex litigation, a self-employed business owner, a stay-at-home mom with custody and parenting time concerns, involved in domestic violence case, going through a same-sex divorce or dissolution of a civil partnership, or facing any other family law issues, she provides high-quality legal representation and advice.
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Read the Transcript of this Podcast Below.
What qualifications should someone look for when choosing a divorce lawyer?
You should choose an attorney who has substantial experience in representing clients in litigation, mediation, arbitration, and collaborative areas of family and matrimonial law. An attorney who has dedicated their career to family law enables the client to obtain the benefit of a wealth of experience in not only litigating cases, but also in settling them in a way that ensures the client obtains the optimal results which address their individual family needs and financial concerns. A client should choose an attorney they feel comfortable working with. An attorney needs to be responsive in answering all of a client’s questions and addressing a client’s concerns in a timely manner. The attorney/client relationship is a professional relationship in which an attorney explains not only the issues related to the specific case, but also explains the legal process, the court proceedings, and the mediation and collaborative processes so that a client can become a knowledgeable and involved participant in their divorce.
What are the main differences between divorce litigation and one of the alternative dispute resolution (ADR) processes (mediation, arbitration, or collaborative divorce)?
Litigation utilizes the New Jersey courts to resolve the issues of a divorce or family law proceeding. Mediation, arbitration, and collaborative divorce are all different types of alternative dispute resolution processes.
In mediation, a trained, impartial, and neutral person called a “mediator” is retained by the parties. The mediator does not represent either party but assists the parties in reaching a mutually acceptable resolution of the dispute. Mediation leaves control of the outcome within the parties’ hands.
In arbitration, a trained, impartial, and neutral person called an “arbitrator” is selected and retained by the parties to hear arguments and evidence from each side and render a decision to the dispute much the same as a judge in a court would do. The parties and their attorneys will spell out the role of the arbitrator and the rules of the arbitration in a written agreement beforehand.
Collaborative divorce is a method of practicing law in which the lawyers for the parties agree to assist the clients to resolve conflicts by employing cooperative techniques rather than adversarial strategies and litigation. If litigation is commenced during the collaborative process by one of the participants, all attorneys and experts are relieved of representation and the parties need to retain new counsel for the litigation process.
What are the benefits of divorce litigation?
Unfortunately, not all cases lend themselves to amicable resolutions in alternate dispute resolution. In instances of domestic violence, or when a party is intent on trying to hide assets or dissipate assets, or is unfit to parent, the court processes may be required. The Court can issue emergent orders called Orders to Show Cause when the need arises. The Court can compel financial disclosure in the case of a party trying to be less than forthcoming. The Court can compel the use of experts, can sanction recalcitrant parties, and can enforce ignored orders. If a party wishes to divorce, the Court will grant their divorce with or without the participation of the other party. An individual can ignore the court process at their peril. In litigation, all decisions are made by the judge who presides over the case. There is a final determination after evidence and testimony is presented, and that determination is binding on both parties subject to the rights of appeal.
How can someone keep the cost of their divorce litigation process down?
A client can keep his or her costs down by being available to discuss their case by compiling their financial documents in a timely manner and by participating in the process in an engaged manner. By retaining an attorney who is experienced in family law, you will be able to hone in on the issues that are important to you and address those issues efficiently by being prepared to engage in a meaningful discussion leading to a fair and equitable resolution. Oftentimes emotions run very high in a divorce. It may be necessary to engage a therapist to address the emotional issues so that, as divorcing party, one is able to focus on the issues that need resolution. Communication is key in a divorce. By effectively communicating what is important to you and to your family, your attorney will be able to incorporate your concerns and needs into a settlement that allows you to move on from the divorce to your future endeavors.
In divorce litigation, is there always a trial or is it possible to settle out of court?
In divorce litigation, there is only a trial if there are issues that the parties cannot agree on and require a judge to make a decision. Furthermore, even if litigation has commenced, the parties can settle specific issues or all issues at any time during the life of the case. The Court encourages the parties to settle their difference between themselves. When the parties are able to effectively communicate their settlement positions and the concerns they have for themselves and their families, oftentimes a settlement can be achieved by addressing the individual concerns in a detailed comprehensive agreement. Any time a case involved in the litigation process is settled, a divorce can be granted. Any time a post-divorce motion or plenary hearing is pending, a settlement can be reached and put into a written consent order thereby ending the litigation.
Can a couple mediate some issues and litigate others? Is there any advantage to doing this?
Yes, parties can commence mediation and prepare a written agreement memorializing those issues that have been resolved and spelling out those issues that will need a court to decide. For instance, parties may settle all of the financial and parenting issues and request that the Court decide on an award of counsel fees. Or, the parties can settle custody and parenting time and request that the Court only decide the length or amount of alimony. By being able to settle those issues in which there is an agreement between the parties and allowing the Court to decide the remaining issues, the divorcing couple can save on litigation costs, which are very expensive, and can streamline any trial preparation and trial time. More importantly, they retain control over the outcome of those issues upon which there is agreement. A skillful attorney can navigate a party through the processes and tailor the pending case to obtain the most beneficial result for the client.
If a divorce involves complex issues, can you still use a mediator?
Yes. The parties, with the assistance of their counsel, should select a trained and experienced mediator who has the education and skills needed to handle complex financial or parenting issues. Experts, whether forensic accountants, financial advisors, or child psychologists, just to name a few, are often utilized in the divorce process to assist not only the mediator but also the parties in educating them as to the value of a business or a practice or in determining a parenting plan in the best interests of the children. By utilizing seasoned professionals, the parties are able to ensure a fair and reasonable outcome. It is important that a divorcing spouse have an understanding of the financial choices and parenting decisions they are being asked to make. The role of the attorney is to guide a client who may not be as financially astute through the process.
Do mediators who are also lawyers provide legal advice? If not, does each party need to retain a lawyer as well?
Mediators who are also lawyers will not give either party legal advice nor are they being retained to do so. The mediator is neutral. The mediator’s role is not to render a decision but to bring the parties to a mutually agreeable settlement. While parties are not required to be represented by attorneys in order to participate in mediation, the area of family law is complex and evolving. In order to obtain a fair and equitable result and make decisions affecting your family, your children, and your finances that will have long-term implications, it is ill-advised to proceed without representation. An attorney will review your finances, discuss your parenting concerns, and provide sound advice as to the law and how it applies in your specific case and to your specific needs. An attorney will advise you on the legal process as well. An attorney will be in the unique position to discuss the terms of the proposed settlement with you and evaluate whether or not the agreement will be in your individual best interests.
What is discovery, and when does it occur during the divorce process?
Discovery is the process by which the parties to the divorce gather relevant facts about the case. Discovery occurs after a complaint is filed or by agreement of the parties in mediation or collaborative divorce. During the discovery period, each party will have the opportunity to propound interrogatories, which are written questions seeking information about finances or custody and parenting time; propound Notices to Produce, which are requests for documents; and take depositions of the other party or even third parties when necessary. The parties will also be required to file a Case Information Statement with the Court and the other party. Sometimes subpoenas are sent to obtain information from third parties as well. The parties have an ongoing obligation to update the exchange of information for as long as the divorce is pending.
What is a deposition?
Depositions are part of the divorce discovery process in which both parties are able to gather testimonial evidence from witnesses. Each party may subpoena or notice whomever they believe has relevant information to the divorce process, such as the other party, experts who have rendered reports, or other third parties who may have knowledge about the case. The witness will be placed under oath by a court reporter and all testimony will be recorded and, in some cases, audio or videotaped. At some depositions the witness or party may also be required to bring specified documents and records. The deposing party can also bring documents to be marked as exhibits and can question the witness about these documents. The testimony elicited during the deposition is considered the same as testimony given in a courtroom and may be introduced in a motion or at trial. Most commonly, deposition testimony may be used to clarify information that is not easily gleaned from documents or to cross-examine and impeach a witness in the event his or her testimony at trial is different.