New Jersey Family Lawyer - rkleinerlaw.com1. Sylvia Pressler and Peter Verniero, Current N.J. Court Rules, Comment R. 4:72-4, (Gann) at 1934. 2. As an aside, the law is in con - flict

New Jersey Family LawyerVolume 32 • Number 4December 2011

CHAIR’S COLUMN

What’s Really in a Name Change?by Andrea Beth White

Aname change may be sim-ple enough to obtain fromthe court in a divorce pro-ceeding, but not so simple

for our clients to implement. Thepurpose of this column is to high-light some of the problems, and pro-vide some helpful practice tips forourselves and our clients.

The right to a name change in a divorce or annul-ment action is specifically set forth in Comment 2.1 toRule 4:72-4 and N.J.S.A. 2:34-21. The comment specifi-cally provides that a name change may be sought andprovided in a divorce judgment. In fact, the comment toRule 4:72-4 provides, “the divorce proceeding should beliberally amended to permit adding that prayer forrelief. Cimiluca v. Cimiluca, 245 N.J. Super 145 (App.Div. 1990).”1 Aside from a conflicting decision,2 theprocess to obtain an order for a name change incidentto a divorce is fairly straightforward. What is not straight-forward or simple, however, is the process thereafter.Once your client has been granted permission to

resume a prior name, you should be able to advise theclient on what happens once they are successful inchanging their name, and how to go about effectuatingit. A client should understand what is required by themonce permission to change the name is granted; that is,a road map for actually effectuating the name change,such as driver’s license, Social Security, credit cards, andthe like. This is certainly no easy task. The truth is, once a name change is granted, there are

a plethora of issues that need to be addressed. The firststep is normally changing the name on a driver’s license.To do so, the individual must go to the Motor VehicleCommission, (formerly known as the Division of MotorVehicle or DMV). Not only will your client need to pre-

sent their judgment of divorce executed by the court,but they also need other points of identification, as well.3

The next step, generally, is to proceed to the Social Secu-rity Administration in order to obtain a revised SocialSecurity card. It might be easier to spend the time at thelocal office of Social Security than to forward all the doc-uments, in order to avoid the documents being returnedto your client for failure to complete the applicationproperly. However, your client should be aware that theapplication itself is quite cumbersome.Next, your client will have to change the title on var-

ious accounts. You would think it would be easyenough to change your name on a credit card. Howev-er, some credit card companies require a copy of theoriginal judgment of divorce to change the name on acredit card. Similarly, an EZ-Pass account cannot bechanged without sending them a copy of your judg-ment of divorce.As a practical point, often judgments of divorce

bearing the gold seal are attached to the marital settle-ment agreement (MSA). This can create a privacy issue,as the client will be disclosing the MSA to various thirdparties. In some counties, the court provides a separateorder (with a gold seal) allowing for a name change. Asa practice point, perhaps practitioners should beginpreparing a separate proposed order providing for thename change, which could be submitted to the courtconcurrent with submission of the proposed judgmentof divorce. Another practical tip is to have the MSA incorpo-

rated by reference, but not attached nor part of thejudgment of divorce. Otherwise, your client may beforwarding the settlement agreement to MVC, SocialSecurity, EZ-Pass, their credit card companies, banks

See Chair’s Column on page 107

NJFL_v32#4_NJFL 12/22/11 4:12 PM Page 105

Chair’s Column: What’s Really in a Name Change? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105by Andrea Beth White

Editor-in-Chief’s Column: A Rose by Any Other Name. . . . . . . . . . . . . . . . . . . . . . . . . . 108by Charles F. Vuotto Jr.

Senior Editor’s Column: Encouraging Second Opinions. . . . . . . . . . . . . . . . . . . . . . . . . 109by Jane R. Altman

2012 Amendments to the Rules Governing the Courts: A Summary for the Family Law Practitioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111by John E. Finnerty Jr. and Marilyn J. Canda

Ethical Considerations in Collaborative Practice: Understanding Collaborative Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118by Risa A. Kleiner

QDRO Pitfalls: What Questions Should You Be Asking When Drafting QDRO Provisions? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122by John Nachlinger

Discovery—It’s Time to Turn the Tables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126by Bonnie Reiss

CONTENTS

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and any other entity requiring ajudgment of divorce in order toeffectuate their name change. Nolitigant could possibly want theseentities to be privy to the termsand conditions of their written set-tlement agreement. In conclusion, be sure to provide

guidance to your client after thejudgment of divorce is entered, andfollow these practice tips whenrepresenting a client seeking aname change in their family part lit-igation. �

ENDNOTES1. Sylvia Pressler and Peter

Verniero, Current N.J. CourtRules, Comment R. 4:72-4,(Gann) at 1934.

2. As an aside, the law is in con-flict regarding a divorce liti-gant’s request for a new name.In Holsue v. Holsue, 265 N.J.Super. 559 (Ch. Div. 1993) thetrial court determined that aspouse or civil union partnerseeking “to assume a surnamenot previously used must com-ply with the notice provisionsof the general name changestatute N.J.S.A. 2A:50-1.”Howev-

er, the trial court in Raubar v.Raubar, N.J. Super. 353 (LawDiv. 1998), disagreed with theholding in Holsue, finding that aspouse could assume any namepursuant to N.J.S.A. 2A:34-21,subject only to notice to lawenforcement authorities if thespouse had been previouslyconvicted or criminal chargesare pending and provided thespouse is not perpetrating afraud upon creditors or others.

3. Information regarding identifica-tion requirements is available atwww.state.nj.us/mvc/pdf/Licenses/ident_ver_posterpint. pdf.

Chair’s ColumnContinued from page 105


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What do we call theagreements by whichwe resolve all issuesin a divorce case? Are

these agreements referred to as aproperty settlement agreement(PSA), marital (or matrimonial) set-tlement agreement (MSA), divorcesettlement agreement (DSA), familydissolution agreement (FDA) orsome other similar name? Although we know that the days

of referring to such agreements as aPSA seem to be long past us, therewas a reason why such agreementswere originally referred to as PSAs.The first reported reference to a“property settlement agreement” inthe context of a divorce caseappears to be in 1953, when it wasreferred to as a “Separation andProperty Settlement Agreement.”1

The relevance of the nature of theagreement (and thereby the impor-tance of what it is called) aroseabout 27 years later, in the contextof a case where the court wascalled upon to examine when themarriage terminates in order toplace after-acquired propertybeyond the court’s reach.2 Sincethen, there have been hundreds ofreported cases citing property set-tlement agreements in the contextof divorce.Most practitioners would agree

that the use of the traditional labelof “property settlement agreement”is no longer viable, similar to theway we no longer use the term “vis-itation” in the context of a noncus-todial parent’s time with his or herchild. There are many other issues

addressed in such an agreement,beyond property division, such ascustody, time sharing, child supportand alimony. Therefore, it is not justan agreement regarding property.However, there is no consistencyamong practitioners regardingwhat a divorce agreement should

be named.Although I do not believe that

there should be an iron-clad rulewithout flexibility in appropriatecircumstances (such as incident tothe dissolution of civil unions anddomestic partnerships), I do believeit makes sense for there to be con-sistency among matrimonial practi-tioners and courts in how we referto these agreements in the typicaldivorce case. The results of a recent survey of

the New Jersey State Bar Associa-tion’s Family Law Section show ageneral consensus that the phrasemarital settlement agreement

(MSA) is preferred by the majority(22.1 percent) of the 299 practi-tioners responding. However, aclose second (20.7 percent)responded that there should be nouniform label for such agreements.The full results of this survey are

found in the following chart:

Personally, I would agree withthe majority, and do use marital set-tlement agreement (MSA) in mycases, as appropriate. The goal ofthis column, however, is not toargue for or against any particularlabel, but to spark a discussionamong practitioners regardingwhether we should adopt a uniformname to our dissolution agreementsand, if so, what it should be. �

ENDNOTES1. Roskein v. Roskein, 25 N.J.

Super. ( Ch. Div. 1953).2. Brandenburg v. Brandenburg,

83 N.J. 198 (1980).

EDITOR-IN-CHIEF’S COLUMN

A Rose by Any Other Nameby Charles F. Vuotto Jr.

SURVEY RESULTSRESPONSE RESPONSEPERCENT COUNT

Property Settlement Agreement (PSA) 14.0% 42

Marital Settlement Agreement (MSA) 22.1% 66

Matrimonial Settlement Agreement (MSA) 11.4% 34

Divorce Settlement Agreements (DSA) 7.7% 23

Family Dissolution Agreement (FDA) 10.0% 30

Domestic Settlement Agreement (DSA) 14.0% 42

There should be no uniform label 20.7% 62

Answered question 299

Skipped question 0


Ihave often been struck by thefact that, in medicine, it is fairlycommonplace for doctors torecommend that a patient fac-

ing a serious illness seek a secondopinion from another doctor whospecializes in treating that illness. Infact, in some circumstances a patientroutinely will seek out a second andeven a third opinion, particularly ifthere is not one standard course oftreatment for the illness. Yet, in thepractice of family law, lawyers infre-quently encourage their clients toget a second opinion.I am not addressing the situation

where a client is aggressively‘lawyer shopping’—searching foran attorney who will adopt theiropinion of what would be a fairresult legitimized by a lawyer.Often such ‘clients’ will misrepre-sent to you, during an initial con-sultation, what another lawyer hastold them. My response is alwaysthe same: “If lawyer X thinks shecan get you that result, you shouldhire her. Because I am quite certainthat I cannot get you that result,nor am I willing to pursue it.” I amalso not addressing the situationwhere a client wishes to pursue anovel approach, one that has neverbeen addressed in a publishedopinion, but may represent the cut-ting edge of new and evolving law.As long as you have been honestwith your client about the likeli-hood of success, and the costs relat-ed to pursuing that approach (bothfinancial and emotional), go for it.There are, however, many cases

that get ‘stuck’ when one or theother client, or attorney, takes an

intractable position and will notmake any further concessions on acertain point. The client may beperfectly reasonable about themajority of the issues, save one, andthe sticking point may be emotion-al or economic.I have great empathy for the very

understandable human emotionsthat lead clients to take these posi-tions. But I also believe it is ourresponsibility as lawyers to letclients know whether the positionthey wish to advance has any rea-sonable prospect of being a‘winnable’ issue if the case goes tocourt.In such cases, if it is my client

who is intractable on such a point, Ioften urge the client to discuss itwith his or her therapist; if theclient doesn’t have a therapist, I rec-ommend one. If that doesn’t work, Iput my opinion of the chances ofsuccess in advancing an intractableposition in writing to the client,pointing out that if and when theposition does not prevail, the clienthas real exposure to an order direct-ing that he or she contribute to theother party’s counsel fees.Often the client has had the ben-

efit of hearing from neutral panelmembers on an early settlementpanel that his or her position has norealistic chance of success. Some-times a judge, during a settlementconference, will also make the samepoint, although always with thecaveat that it is possible, during atrial, that facts will be presented thatchange the judge’s opinion. Maybean economic mediator has made thesame point, but it falls on deaf ears.

Sometimes I bring in a partner orassociate to emphasize that theclient’s position will not prevail;that a trial is costly, both emotional-ly and financially; and that compro-mise is advisable. However, someclients cannot, or will not, hear themessage, and insist on pursuingtheir position. In that case, I oftenrecommend that the client obtain asecond opinion from another fami-ly law practitioner.Sometimes clients are resistant

to this suggestion. Typically theywill argue that a second opinionwill cost them money they don’twant to spend (a ludicrous argu-ment compared to what they willspend to try the case and lose). Oth-ers argue it is simply too painful torehash the facts of their divorcewith yet another lawyer. Still otherssay that they have every confidencein me and my ability to prevail inadvancing their argument, eventhough I have told them that I can-not. What I suspect with theseclients is that they are simply hop-ing to wear down the other side bynot budging in their position. How-ever, I choose not to practice lawthis way. There is a big differencebetween aggressively presenting aclient’s position that has a legiti-mate claim to validity and lettingyour client use you to achieve aresult simply by being difficult andintractable.I ask, and sometimes insist, that a

client in this extreme situationobtain a second opinion from alawyer whose practice is primarilyor exclusively in the area of familylaw, and preferably from a lawyer

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SENIOR EDITOR’S COLUMN

Encouraging Second Opinionsby Jane R. Altman


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who regularly practices in the coun-ty in which the case is pending. It iscertainly preferable that the clientchoose that lawyer him or herself,so there is no taint of your havinginfluenced the outcome of the con-sultation. However, if the client sayshe or she doesn’t know any otherlawyers, or have the resources tolocate another lawyer, and asks for arecommendation, I will provide twoor three names of attorneys Irespect professionally.It is my impression that suggest-

ing seeking a second, completelyneutral, opinion is not commonpractice. Perhaps some practitionersfear the loss of the client to thelawyer giving the second opinion. Ithink this is an unrealistic concern,particularly if you generally have agood relationship with your client.That said, should you lose the client,is it not better for your client toadvance a position that you cannot

comfortably support with a lawyerwho has some faith that the posi-tion can prevail? It is not a healthyor productive lawyer/client relation-ship to be butting heads with yourclient in these situations. I supposeclients have a right to take positionsthat are unrealistic and unreason-able based on the facts of their caseand the applicable law. But you donot have to be the lawyer takingthat position for them.Suggesting a second opinion

may be particularly useful if you area sole practitioner. There are alsooccasions when your client mightencourage his or her spouse to geta second opinion if the parties arereceiving diametrically opposedinformation from their individuallawyers about how New Jersey lawapplies to the facts of their particu-lar case. The second opinion canhelp break the deadlock.It’s easy to think that the client

has already received a de facto sec-ond opinion from the early settle-ment panelists. But panelists whohave spent perhaps 20 to 30 min-utes with a case do not understandthe nuances that are involved, norcan they be expected to address thepsychological factors that led yourclient to the intractable position.Typically, when clients try to raisethese issues, they are shut down bythe panelists, who may have fiveother cases to hear that morning. Bycontrast, a lawyer giving a secondopinion will presumably take thetime to review the relevant docu-ments and really listen to what yourclient is saying.Actively encouraging a second

opinion from a competent matri-monial lawyer is an underused toolby family law practitioners. I sus-pect some difficult cases could set-tle without the necessity of a trial ifit was used more often. �


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The Court Rules are alawyers’ lifeline. Trying topractice law withoutknowledge of the nooks

and crannies of the rules and howthey may impact your area of prac-tice, is analogous to attempting todo surgery without having gone tomedical school. Representing aclient in family law litigationrequires you to know what you cando, when you must do it by, andhow appropriately to obtain exten-sions and other discretionary relieffrom a court in order to effectivelyprocess your case. This article isintended to introduce the familylaw practitioner to the 2012 NewJersey Court Rule Amendments thataffect family law practice. The 2012 edition of the Rules

Governing the Courts of the State ofNew Jersey, as they pertain to thepractice of family law, have beenamended, based primarily on the rec-ommendations set forth in the FamilyPart Practice Committee 2009–2011Final Report dated Jan. 20, 2011.While many of these amendments aretechnical in nature, so that the rulescomply with the Civil Union andDomestic Partnership Acts, there areseveral substantive amendments tothe rules of which every family lawpractitioner must be aware. Theyinclude the following:

• Additional remedies for violationof restraining orders;

• Proper vicinage for enforcementof child support orders;

• Adoption rules;• Court Rules appendix changes inconnection with mediators andtheir fees;

• Standardization of non-dissolu-tion and post-disposition prac-tice in all family part summaryactions;

• Probation-initiated status reviewof support orders;

• The deletion of certain formsfrom the appendix of the CourtRules; and

• Miscellaneous changes set forthin section nine of this article.

In order to better serve clients,not only should every family lawpractitioner read and understandthe rules and the 2012 amend-ments, but practitioners alsoshould read the Family Part Prac-tice Committee Report in order tounderstand why many of theseamendments were proposed. Thereport also provides insight intothe rationale for proposed rulesthat were not adopted by thecourt, including one pertaining totaping of parenting and custodyevaluation sessions conducted bymental health experts. The reportalso contains an in-depth discus-sion of current views regardingparenting coordination, which didnot result in a rule proposal, butdid result in a policy recommen-dation that presumably is stillunder review, since no pronounce-ment has been made by theSupreme Court.

TECHNICAL CHANGES TO THECOURT RULES PURSUANT TO THECIVIL UNION AND DOMESTICPARTNERSHIP ACTPursuant to the Civil Union Act

and the Domestic Partnership Act,the Family Part Practice Committeerecommended technical changesthat were necessary to Part V of theCourt Rules as a result of those acts.These technical rule changes areessentially comprised of a departurefrom terms that relate to hus-band/wife, marriage, spouse, matri-monial and divorce, and instead sub-stitute more generic terms, whichencompass civil unions and domes-tic partnerships such as: dissolution,termination, plaintiff/ defendant,civil union partner/ domestic part-ner and family. Moreover, the rulesnow refer, in addition to divorce, todissolution of civil union and ter-mination of domestic partnership.

ADDITIONAL REMEDIES FORVIOLATION OF RESTRAININGORDERS NOT SUBJECT TOCRIMINAL COMPLAINTS

5:3-7: Additional Remedies onViolation of Orders Relating toParenting Time, Alimony orSupport or Domestic ViolenceRestraining OrdersAmendments to this rule include

important relief that will substan-tially assist the victim of domesticviolence, since the offending partycan now be punished by the court,on its own motion, as the court is

2012 Amendments to the Rules Governing the CourtsA Summary for the Family Law Practitioner

by John E. Finnerty Jr. and Marilyn J. Canda


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permitted to do in connection withRule 5:3-7 (child support enforce-ment), without requiring the victimto retain an attorney to file his orher own motion (Rule 1:10-3)and/or to rely on a contempt com-plaint that must be filed by theattorney general or county prosecu-tor’s office (Rule 1:10-2). The changes to this rule

approved by the Supreme Courtdeal with the court’s ability toenforce those provisions of therestraining order that previouslywere not punished by criminalsanctions. Violations of Part I reliefunder the statute, contact with thevictim, are punishable by criminalcontempt charges against theoffending party. The new rule nowallows the court to compel compli-ance with Part II relief (i.e., non-compliance with court-orderedsocial services, support, or custodyset forth in the restraining order) byallowing the court to impose therelief set forth in the rule below.Specifically, if the court finds that

a party has failed to comply withthe provisions of an issued restrain-ing order, and the non-complianceis not subject to criminal contempt(Part II relief excluded underN.J.S.A. 2C:25-30), the court may, onnotice to the defendant, in additionto the relief provided by 1:10-3,grant any or all of the following:

1) economic sanctions;2) incarceration with or without

work release (emphasis sup-plied);

3) issuance of a warrant to be exe-cuted upon further violation ornon-compliance with the order;

4) any appropriate remedy underparagraph (a) or (b) which isapplicable to custody or par-enting time issues or alimonyor child support issues; and

5) any other appropriate equi-table remedy.

Therefore, if a violator failed toattend court-ordered anger manage-ment or other counseling services,he or she could be incarcerated.

PROPER VICINAGE FORENFORCEMENT OF CHILDSUPPORT ORDERS

5:7-4 Alimony and Child Support Payments The amendments to this rule

were made in order to insure unifor-mity of child support enforcementin all New Jersey vicinages. Specifi-cally, pursuant to the rule amend-ment, venue and enforcement mustnow be in the same county, regard-less of where the obligor resides. Inother words, the court that issuedthe order will be the place wherethe order will be enforced.In Jan. 2005, an Adiminstrative

Office of the Courts directive estab-lished uniform standards regardingtransfer of child support casesbetween vicinages, which requiredchild support cases to be assignedto the Probation Child SupportEnforcement Unit (PCSE) where theorder was established, regardless ofwhere the obligor resided. However,despite that directive, this practicewas not uniformly filed, and enforce-ment sometimes occurred in coun-ties where the obligor resided. In order to ensure that the venue

and enforcement are in the samecounty in every vicinage in New Jer-sey, the rule has been amended toprovide that enforcement of childsupport orders shall now be pre-sumptively in the county in whichthe child support order is first estab-lished (county of venue), unless thecase is transferred for cause. Whenvenue of a support case is trans-ferred, probation supervision of thecase shall also be transferred, unlessthe court otherwise orders for cause. While the reason for the rule

amendment is clear, it also presentssome practical difficulty, especiallyif there is a significant distancebetween the county of venue/enforcement and where the obligorresides. For example, if the countyof venue/enforcement is Bergen andthe obligor resides in Cape May, willit not pose an economic burden forBergen to arrange for an arrest ofthe obligor in Cape May? This is a

practical concern in this time ofeconomic distress, and in light ofNew Jersey’s budgetary concerns.

AMENDMENTS TO EXISTINGADOPTION RULESThere have been significant

amendments to the Court Rule gov-erning adoptions that are extensiveand detailed. For example, prior toeven filing a complaint for adoption,the family law practitioner mustnow insure that the proper searchesare conducted, and that criticalinformation is gathered and submit-ted with the complaint. If the prop-er information is not provided atthis early stage in the process, thecomplaint will be rejected. There-fore, the family law practitioner whohandles adoption matters must readand master the amended rules. The following is a summary of

those rules:

One Adoptee PerComplaint/JudgmentRules 5:10 and 5:11 have been

amended to insure that there is a sep-arate complaint filed for each child tobe adopted. However, the supportingdocuments for a sibling group adopt-ed by a single family may be submittedas one set of documents. This way, it iseasier to track each individualadoptee, particularly foster children inthe care of the Division of FamilyDevelopment. In recognition of thefinancial burden that this mightimpose on families who seek to adoptmore than one child, the surrogatemay, in cases when multiple childrenare adopted, waive the fee for addi-tional children. In addition, Rule 5:10-11(judgment of adoption) nowrequires that a separate judgment ofadoption be entered for each adoptee.

Minimum Requirements for allAdoption Complaints Before an adoption complaint is

filed and docketed with the surro-gate, there must be at least a mini-mum standard level of review of thecomplaint and its attachments. Ifrequired documents are notattached, then the complaint will not


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be filed and will be returned to theplaintiff. The new required addition-al information that must be providedfor adoptions of children placed foran adoption for an approved agencycan be found in Rule 5:10-3(a) and(b). For all other adoptions of chil-dren who have not been placed foradoption by an adoption agency ofthe Division of Youth and Family Ser-vices (DYFS), changes can be foundin Rule 5:10-3(c). These changes aresummarized as follows:

5:10-3 Contents of Complaint(Adoption)(a) In addition to technical

amendments as a result of the civilunion and domestic partner acts, therule requires miscellaneous changeswith regard to the adoption com-plaint, the goal of which is for theplaintiff to supply more informationin the initial stages of the action. Thechild’s date of birth must be includ-ed, the date of the child’s placementin the adoptive home, the name ofthe approved agency or other sourcefrom which the plaintiff(s) receivedthe child to be adopted. The plaintiffmust also include proof of the man-ner in which the child became legal-ly free for adoption or a statementthat paternal rights have not beenterminated. It must be certified in thecomplaint that neither the child northe child’s biological parents aremembers or eligible to be membersof a federally recognized Indian tribein accordance with the requirementsset forth in Rule 5:10-6 (see newlyadopted rule) and the federal IndianChild Welfare Act.

Additional Requirements forDomestic Agency AdoptionsSubsection (b) has been added

to the rule to address additionalrequirements for domestic agencyadoptions. In addition to therequirements for all adoption com-plaints set forth in (a) of the rule,the following documents must alsobe attached to these complaints: areport of consideration and expens-es in accordance with N.J.S.A. 9:3-55a, a home study report, the result

of a criminal history and childabuse record information requests,and the signed original agency con-sent to the adoption. In addition, in these cases the

agency shall also certify as to the fol-lowing: an explanation and evalua-tion of the results of fingerprintchecks, that a termination of parentalrights judgment is not pendingappeal,1 that the agency is unawareof any pending concurrent adoptionaction existing in another county,that the adoptive parents have beenprovided with full disclosure of theadoptee’s known life and medicalhistory, as well as the birth parents’known medical history, whether theadoptive parents have entered into asubsidy agreement, that no adultmember of the adoptive householdhas been convicted of a crime thatbars adoption pursuant to the Adop-tion and Safe Families Act (ASFA) andin DYFS cases, the adoptee’s verifiedcurrent Social Security number andthe card shall be supplied to theadoptive parents, if available.Also attached to every action for

domestic agency adoption shall bea form of order fixing a hearingdate, interstate compact on theplacement of children authoriza-tion form that approves the place-ment, if applicable, an affidavit ofnon-military service if the there hasbeen no termination of parentalrights and that the birth parentshave not surrendered their rights.

Additional Requirements forPrivate AdoptionsIn addition to the requirements of

the adoption complaint set forth in(a), the complaint for a private adop-tion pursuant to this rule shall alsoinclude: a report for considerationand expenses pursuant to N.J.S.A.9:3-55(a), except if the plaintiff is astepparent, brother, sister, grandpar-ent, aunt, uncle, or birth father of thechild, affidavit of the circumstancesunder which the child was receivedin the adoptive home, in the case ofa second-parent or co-parent adop-tion, the complaint shall be the sameas that of a stepparent adoption,

when termination of parental rightshas not been granted to the birthparents and they have not surren-dered their rights, the complaintmust have attached to an affidavit ofnon-military service and a form oforder setting a date for a preliminaryor final hearing.In all complaints for adoptions

an affidavit of verification and non-collusion must be attached inwhich the plaintiff affirms that theallegations in the complaint aretrue to the best of the party’sknowledge, information and belief.

Surrogate Action on ComplaintRule 5:10-4 (surrogate action, for-

merly action on complaint) has beenamended to require the surrogate toreview complaints to insure that all ofthe necessary information and docu-mentation has been filed with thecourt. Prior to docketing the com-plaint, the surrogate is now requiredto determine the following: thatvenue is proper, that all informationhas been included pursuant to Rule5:10-3 set forth in detail above, that acurrent address and all prior address-es of each plaintiff are provided forthe last five years, the names, dates ofbirth and all residences within thepast five years of all other adults in theadoptive home, the marital, domesticunion, or civil union status of eachplaintiff and the name of the spouseor partner, if each such person is alsonot a plaintiff, a home study reportconsistent with the information con-tained in the complaint.Added to Section (b) (jurisdic-

tion) is the requirement that if itappears from the information con-tained in the complaint that jurisdic-tion is proper and that the complaintis complete in all respects, the com-plaint shall be docketed. At that time,the surrogate’s staff shall conduct ajudicial look up, and if any of the par-ties exist in the system, the parties’demographic information shall becopied into the adoption case usingthe process in the Judiciary’s casemanagement system. There is also anew requirement that the surrogateprovide the entire adoption file to


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the court for review no later thanfive business days before the firstadoption proceeding.

5:10-5 Preliminary Hearing(Formerly Rule 5:10-5)The new provisions to this rule

were designed to address concernsregarding the necessary safeguardsrequired to protect adoptees. There-fore, this rule has been amended torequire the agency (rather thanDYFS, the court or adoptive parents)to conduct the searches for all crim-inal history record information,domestic violence and child abuserecord information on both theadoptive parents as well as individu-als over 18 in the household. If DYFShas placed the child for adoption,DYFS must disclose to the courtinformation discovered during itsinvestigation relating to a pattern ofarrests or domestic violence restrain-ing orders against the adoptive par-ents, and make recommendationsregarding whether such acts shouldpreclude the adoption. Finally, therule has been amended to requirethat the medical information of thebiological parents be held in thecourt’s file. Therefore, in the eventthe adoptee seeks this information, itcan be obtained from the court file.If this requirement was not in place,and the adoptee was required tosecure critical medical informationfrom an adoption agency that is nolonger in existence, the lack ofaccess to the information could belife threatening in some cases. A summary of these rule changes

are as follow:After the order for a pre-liminary hearing is entered, the plain-tiff is required to mail a copy of theorder and the complaint to theapproved agency appointed by theorder to make an investigation report.At least five days prior to the hearing,the approved agency is required tofile its report with the court and maila copy to the plaintiff. Now, the rulehas been amended to require that themedical histories of the biological par-ents shall be submitted to the court,and shall be retained in the court’sfile. If the medical history is unavail-

able, or the biological parents refuseto provide it, the agency shall makenote of this information in the reportsubmitted to the court.A new Section (b) has been

added to the rule, titled Back-ground Checklist and Certificationby Approved Agency. The approvedagency is now required to supply tothe court with a background check-list and certification, which includesinformation relevant to criminal his-tory and child abuse record infor-mation. If the agency discovers apattern of arrests or domestic vio-lence restraining orders against theadoptive parents or householdmembers over the age of 18 in thehousehold, this information must besubmitted to the court. The agencyshall also be required to certify thatit is in the best interest of the childto finalize the adoption after consid-eration of the background informa-tion known to the agency.

5:10-12 Judgment of Adoption;Procedures for Closing and SealingAdoption Records (formerly 5:10-9)This rule was amended to insure

that procedures to close and seal anadoption are consistent throughoutthe state. Upon receipt of a check, the sur-

rogate shall submit the report ofadoption, as well as the certifiedjudgment of the adoption, to theBureau of Vital Statistics and Registra-tion. All records and indexes of pro-ceedings pertaining to adoptionsshall be filed under seal, and shall atno time be open to inspection unlessthe court orders for good causeshown. Finally, when an adoptioncase is sealed and there is a relatedchild placement case (FC docket),the child placement case shall beclosed to reflect the adoption, butonly when the DYFS provides thecourt with a notice of change. If theadoption occurs out of state, DYFSshall provide the court with both thejudgment of adoption and the noticeof change to close the child place-ment case. The documents shall beprovided to the court no later than30 days after the adoption is entered.

5:11 Action for Adoption of AdultThe rule governing the adoption

of an adult was also expanded torequire at least a minimum level ofreview of the complaint and itsattachment before the complaint isfiled and docketed. If the rules arenot followed and the information isnot provided, the complaint willnot be filed and will be returned tothe plaintiff. The additional require-ments that have been included are:the spouse, civil union or domesticpartner of the plaintiff must con-sent to the adoption, and an affi-davit of verification and non-collu-sion must be attached.

ADOPTION PRACTICE: NEW RULES

Rule 5:10-5 Post-ComplaintSubmissions2

This rule requires that a number ofdocuments be submitted to the court10 business days before a preliminaryhearing, as well as numerous docu-ments 10 days prior to the final hear-ing. See Rule 5:10-5 for the detailedlist of the required documents.

Rule 5:10-7 Judicial Surrender ofParental Rights3

The new rule sets the proceduresfor a biological parent to surrenderhis or her parental rights before thecourt by filing a request with thecourt. The rule requires a hearing tobe scheduled on an expedited basis.In addition, the rules provide forwhat the contents of the requestshould include, such as certificationof the biological parents consentingto adoption, good faith representa-tion of the biological parents thatthe child is not a member of or eli-gible to be a member of a federallyrecognized Native American tribe,dates of availability to appear for ahearing within seven days of filingand a proposed form of order. The closed hearing shall take

place in seven days to determine ifthe surrender is voluntary, at whichtime the surrendering parent shallbe advised of his or her rights,which are set forth in detail in the


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rule. The rule also provides thatapproved adoption agencies andDYFS shall continue to be permit-ted to accept surrenders of parentalrights pursuant to N.J.S.A. 9:3-41.

5:10-13 Requests to UnsealAdoption Cases; Procedure4

In an attempt to insure uniformi-ty through the state, the SupremeCourt has adopted a procedure tounseal adoption cases, which is setforth in Rule 5:10-13. Such a requestmust be made via motion or nota-rized request, and the court may, ifnecessary, schedule a hearing. Afterthe court decides there is goodcause to unseal the record, it shallprovide the signed order to the sur-rogate. If the request is granted, thesurrogate shall provide the order tothe requesting party, and make thecopies available as directed by thecourt’s order. If the court denies therequest, the requesting party shallreceive a copy of the order and acopy of the written request, and theorder shall be included in thesealed file.

Additional Miscellaneous NewRules• Rule 5:10-14 Domestic Adop-tions and Re-adoptions of For-eign Citizens

• Rule 5:10-15 Adoptions of UnitesStates Citizens by Residents ofForeign Countries That are Signa-tories to the Hague Convention

• Rule 5:10-16 Adoptions of UnitedStates Citizens by Residents ofForeign Countries That are NotSignatories of the Hague Adop-tive Convention

• Rule 5:10A Adoption of a Childor an Adult; Use of AutomatedSystem; Name Checks

DirectivesIn addition to the rule amend-

ments and the new rules that havebeen enacted with regard to termi-nation of parental rights and adop-tion matters, there is also Directive#06-11 (modifies Directive #17-06)dated Aug. 23, 2011, (effective Sept.1, 2011) issued by Glenn A. Grant,

J.A.D., acting administrative directorof the courts, which can be found athttp://www.judiciary.state.nj.us/directive/ipdate11.html. The purpose of the directive is to

insure compliance with the newrules and the rule amendments, andto improve the circumstances forchildren who are placed for adop-tion either by DYFS, an approvedadoption agency, or a private partyadoption. The rules and directives are also

designed to provide guidance tothose who are involved in the adop-tion process, such as the DYFS staffpreparing adoption matters, practi-tioners who file adoption cases, sur-rogates who review and processadoptions and the judges and theirstaff who review and manage thecases. The directives can be foundin detail at the above link.To insure compliance with the

directives, each vicinage is requiredto develop a detailed plan (whichmust include steps taken to imple-ment each policy, a description ofany anticipated barriers and a pro-posed resolution to the barrier) incollaboration with the surrogate,which was to be submitted to theAdministrative Office of the Courtsby the assignment judge by Oct. 17,2011. The plan must also includedetails of actions taken to collabo-rate with local DYFS leadership andwith the bar on these issues.

CHANGES TO COURTRULES/APPENDIX INCONNECTION WITH MEDIATORS

Rule 1:40-12 Mediators andArbitrators in Court-AnnexedPrograms Continuing TrainingIn connection with the four hours

of continuing education requiredannually by the mediator, the ruleamendment includes a requirementfor instruction regarding ethicalissues associated with mediationpractice, program guidelines and/orcase management, instead of allow-ing ethical issues associated withmediation practice to be only oneoption. It is now mandatory.

Appendix XXVI Guidelines forCompensation of MediatorsServing in the Civil and FamilyEconomic Mediation ProgramsThe rules governing fees charged

by mediators have been more nar-rowly defined to protect litigantswho are participating in the alter-nate dispute resolution process bykeeping them informed throughoutthe process, to insure the mediatorsparticipating in the process arelegitimately providing the two freehours required of them, and also toinsure that the mediators do notcharge excessive fees. The changes are as follows:

• The “two free hours require-ment” applies only to mediatorson the court’s roster of civil andfamily mediators in a mediationthat is court ordered;

• Unless otherwise provided inthe guidelines for compensatingmediators, no fee, retainer orother payment may be chargedor paid prior to the conclusionof the two free hours;

• At the beginning of the initialmediation session, the mediatoris required to provide, in a formprescribed by the administrativedirector of the courts, theamount of preparation time themediator has spent to that point;

• If the mediator spent more thanone hour in preparation time,and intends to charge the partiesfor that additional time if theycontinue with the mediator on apaying basis, this must be dis-closed by the mediator in a writ-ing prior to commencing the ini-tial session;

• Any such additional time mustbe charged in accordance withthe rate set forth on the court’sroster;

• At the beginning of the in-per-son mediation session, the medi-ator shall disclose in writing, in aform prescribed by the adminis-trative director of the courts, spe-cific time left in provision of freemediation services. The formmust also state that mediation


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beyond that time will be billed atthe rate set forth on the roster;

• Deleted from the rule is the pro-vision that states “no retainer feeor advance may be requested bythe mediator at any time;” and

• If a mediator has not been timelypaid, or a mediator and/or partyhas incurred unnecessary costsor expenses because of a failureof a party and/or counsel to par-ticipate in the process in accor-dance with the order, the media-tor and/or party may bring anaction to compel payment in thespecial civil part. The prior prac-tice of the court issuing a suasponte order to show cause as towhy the fees should not be paidhas been revoked. The court isno longer an initiating arm forenforcement of fee obligationsto the mediator.

PROBATION-INITIATED STATUSREVIEW OF SUPPORT ORDERS

Rule 5:6-6 Probation-InitiatedStatus Review of Support OrdersRule 5:6-6 has been amended to

clarify that the probation depart-ment is not intended to be the pri-mary initiator of applications tomodify support, even though thelanguage of the rule permits this.The Supreme Court approved theFamily Part Practice Committee rec-ommendations that make clear inthe amendment that the obligationsof the department is authorized toinitiate status reviews before thecourt under circumstances whenthe parties cannot or do not file forcourt action. Pursuant to theamended rule, the probationdepartment is permitted to initiatestatus review before the court forparties who cannot or do not filefor a court action that results in pro-bation’s inability to properly man-age the case. For example, the probation

department would take action if anofficer learned of cases where: 1)child support was being paid for a26-year-old child who was emanci-pated; 2) an obligor dies and child

support must be terminated; or 3)an obligee is receiving direct pay-ments and failing to report the pay-ments to the probation departmentthat is responsible for enforcementof a child support order. Withouttaking the appropriate action incases such as these, the probationdepartment cannot effectively man-age the case.Formerly titled as Modification of

Title IV-D Child Support Orders,specifically, the rule has beenamended to clarify that, for casemanagement purposes only, proba-tion may, subject to procedural dueprocess requirements, present casesto the court for status review toeither suspend or terminate a sup-port order, to close a case supervisedby probation, or to take any suchaction as the court may deem appro-priate and just. The rule amendmentis intended to make clear that pri-mary responsibility for review ofsubstantive material change lies pri-marily with the parties. Finally, the rule was further

amended to provide that the formsand procedures to implement theprovisions of the rule shall be pre-scribed by the administrative direc-tor of the courts, in conformity toand consistent with Rule 5:6B(e).

STANDARDIZATION OF NON-DISSOLUTION AND POST-DISPOSITION PRACTICE IN ALLFAMILY PART SUMMARYACTIONSRule 5:4-4 “Service of Process in

Paternity and Support Proceedings;Kinship Legal Guardianship,” hasbeen changed to “Service of Processin Family Part Actions; Initial Com-plaints and Applications for Post-Dispositional Relief.”The Family Practice Committee

recommended that certain summa-ry matters should be standardized,specifically non-dissolution matters(FD docket), domestic violence andkinship legal guardianship post-dis-positional matters. The SupremeCourt accepted the proposed ruleamendment to provide uniformityin areas such as manner of service

and “diligent inquiry” searches. In addition to the rule amend-

ments, it is important for the practi-tioner to be aware of and to reviewin detail Directive #08-11, datedSept. 2, 2011, (effective Sept. 1,2011) issued by Glenn A. Grant,J.A.D., acting administrative directorof the courts, which can be found atwww.judiciary.state.nj.us/directive/ipdate11.html. The directive promulgates

revised filing and post-dispositionalprocedures for the non-dissolution(FD) docket because it was deter-mined essential to provide the pub-lic with efficient methods toprocess these types of cases (never-married parents seeking custody,parenting time, paternity, child sup-port and medical support). Stan-dard statewide practices must beimplemented to enable the publicto effectively resolve their disputes.The specific statewide procedurescan be found using the above link. In connection with this direc-

tive, to insure compliance, theAdministrative Office of the Courts(AOC) is requesting that each vici-nage review its procedures and pre-pare an appropriate plan for imple-mentation to be submitted to theAOC for review. In addition, newforms and instructions are postedon the Internet for easy access tothe public. In connection with change of

beneficiary of child support orders,in the Temporary Aid to Need Fami-lies (TANF) Program, also see theabove link, specifically Directive#02-11 (which supersedes Direc-tive #4-93).

THE DELETION OF CERTAINFORMS FROM THE APPENDIX OFTHE COURT RULESThe Supreme Court appeared to

adopt the recommendation of theFamily Part Practice Committee andthe Conference of Family PresidingJudges that certain forms should bedeleted from appendix to the rules,and instead be promulgated by theadministrative director of thecourts.


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1:5-6 Filing The confidential litigants sheet

in the form prescribed “by theAdministrative Director of theCourts” instead of “in AppendixXXIV.”

5:5-3 Financial Statement inSummary Support ActionsThe financial statement and the

confidential litigant’s sheet that mustbe provided must be in accordancewith what is proscribed by theadministrative director of the courtsas opposed to appendix of the rules.Appendix XIV was deleted.

4:101-5 Assignments of,Postponement of Lien of, orWarrant to Satisfy Judgments;Entry of Satisfaction – ChildSupport Judgments and Orders If payment is made to an obligee

by an obligor, and the order requirespayment through “probation”instead of “a probation department,”the chief probation officer shallissue a certification of the amountin a form (instead of “the form”) pre-scribed by the administrative direc-tor of the courts, as opposed toAppendix XIII to these rules. Thatappendix has been deleted. In all, the following appendices

have been deleted: Appendix XXIV;Appendix XIV; Appendix III; Appen-dix XIV (financial statement in sum-mary actions); Appendix XXIV (con-fidential litigant’s sheet); AppendixXVI (uniform summary supportorders 5:74); and Appendix XVII(family part temporary supportorder).

MISCELLANEOUS RULE CHANGES

1:5-6 Filing The Supreme Court also adopted

a rule recommendation from theFamily Part Practice Committee thata complaint submitted without acertification and verification ofnon-collusion will be markedreceived but not filed. Failure toattach that certification to anattempt to file a complaint rendersthe complaint non-conforming. It

will be returned, stamped“received” but not “filed.”

4:101-1 Abstracts to be EnteredReference to the Automated

Child Support Enforcement System(ACSES) has now been amended tothe New Jersey Automated ChildSupport System.

5:7-2 Application Pendente LiteThis rule has been extended to

address “enforcement” applications.The rule also eliminated referenceto a “petition,” since it is no longerthe practice of an attorney to file apetition. Instead, the practice is tofile a motion, and the rule accord-ingly has been amended.

5:7A Domestic Violence:Restraining OrdersPrior to the rule revision, when

hearing an application for arestraining order if the applicantwas not physically present beforethe court, the court was required tomemorialize the terms of the orderand direct the law enforcement offi-cer assisting the applicant to enterthe judge’s order on an appropriatepapers designated as the duplicateoriginal temporary restrainingorder, which would be deemed atemporary restraining order (TRO).Since many municipalities and vici-nages have begun issuing orderselectronically (also known as e-TROs), there is no need for a con-forming order. The amendment nowpermits, in vicinages where anapproved form of electronic prepa-ration of restraining orders is avail-able, that the order may be trans-mitted electronically without theneed for a duplicate written order.

5:8-2 Direction for Periodic ReportsIn a case in which a court has

entered an order for custody, acourt may file a certified copy ofthat order or judgment in the coun-ty in which the children or childresides with a direction that period-ic reports be made to the status ofthe custody. Prior to the ruleamendment, the entity involved

was the probation office, which hasnow been changed to the FamilyDivision.When dealing with copies of

custody decrees of another state,instead of being filed with the clerkof the superior court of this stateand sent to the probation office ofthe county in which the children orchild resides, the custody decree ofanother state shall now be filedpursuant to procedures promul-gated by the AOC.

5:8-4 Filing of ReportsInvestigation reports made pur-

suant to this rule shall now be filedin the Family Division as opposedto the chief probation officer. TheFamily Division personnel shall alsonow be charged with conductingthe investigation rather than theprobation officer. �

ENDNOTES1. The Family Part Practice Com-

mittee determined that in DYFScases, adoption represents per-manency for a child. Therefore,in a case where parental rightshave been terminated, beforean adoption complaint is filed,it is preferred that the termina-tion process be finalized. See R.5:10-3 (a)(7) and R. 5:10-3(b)(5)(B).

2. R. 5:10-5 was formerly prelimi-nary hearing, which is now R.5:10-8).

3. R. 5:10-7 was formerly petitionfor modification of circum-stances of order, which is nowR. 5:10-10.

4. R. 5:10-13 did not previouslyexist under the rules.

John Finnerty and MarilynCanda are partners in the BergenCounty law firm of Finnerty,Canda and Drisgula, whose prac-tice is devoted exclusively to thepractice of family law.


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Collaborative practice is aform of alternate disputeresolution that utilizes ateam approach to resolv-

ing disputes. There are now collab-orative professionals in virtuallyevery state in the U.S., everyprovince in Canada and 22 othercountries around the world. In NewJersey, more than 250 collaborativepractitioners have been trained, andthere are six regional practicegroups that participate in thestatewide New Jersey Council ofCollaborative Practice Groups. Eachgroup serves its own geographicalarea, but members may participateon a team with any other collabora-tive professional in the state.Perhaps collaborative practice is

best summarized in a 2005 Ken-tucky Bar Association ethics opin-ion, which stated, in relevant part:

The goal of the collaborative lawprocess is to reach an agreementthrough a cooperative process. It isbased upon a problem-solving modelrather than an adversarial model andtends to focus on the future, ratherthan the past; on relationships ratherthan facts; and on rebuilding relation-ship rather than finding fault.1

In collaborative practice, eachparty is separately represented by acollaboratively trained attorney, andcollaboratively trained financial andcustody experts are brought ontothe team as needed. In addition tosigning separate retainer agree-ments with each professional, theclients and both attorneys executea participation agreement in whichthey consent to engage in full, open

and good faith disclosure. Theagreement also confirms that ifcourt proceedings are threatenedor started by either side, the collab-orative process must terminate andthe attorneys must withdraw. It ismade clear that, notwithstandingthe cooperative nature of theprocess, each attorney will diligent-ly represent the interests of his orher client in accord with the Rulesof Professional Conduct. Eventhough the clients are thoroughlybriefed about the nature of thisprocess and how it differs from tra-ditional litigation, the nature of theparticipation agreement and therequirement that attorneys mustwithdraw if the process breaksdown, have led to ethical concernsabout collaborative practice.

ETHICAL DILEMMAS FORATTORNEYS IN COLLABORATIVEPRACTICESince its inception, collaborative

practice has challenged traditionalideas about the role of an attorney.Over the past 14 years, several statebar associations and the AmericanBar Association have grappled withthe possible conflicts an attorneymay encounter in representing aclient in a collaborative divorce.These issues have arisen, in part,because collaborative practicebrings together in a team bothattorneys and other professionals,to focus on the needs of both par-ties and their children. This hasraised ethical questions and engen-dered skepticism among experi-enced litigators, who fear that therights of individual clients are notbeing adequately protected.

Further, the concept that partiesmust commit to open disclosure inan informal discovery processbased on good faith has been asource of concern. Can attorneysassure their clients that all neces-sary information is being broughtto the table? Attorneys unfamiliarwith collaborative practice alsoquestion the necessity of making acommitment to resolve the disputeoutside of court, and to withdraw ascounsel if that goal cannot be metand force the parties to terminatethe process and start anew withnew litigation counsel. As of thiswriting, only one bar association(Colorado) has examined the col-laborative process and found it tobe inconsistent with the standardsattorneys must follow, while theAmerican Bar Association and 11state bar associations haveapproved of collaborative practiceand at least three states (California,Texas and North Carolina) haveincorporated it into their family lawstatutes.

THE STATE BAR ASSOCIATIONSSPEAKThe American Bar Association,

along with the bar associations ofthe following states have issuedethics opinions approving the prac-tice of collaborative divorce: NewJersey, Pennsylvania, Maryland, Cali-fornia, Texas, Kentucky, North Car-olina, Minnesota, Missouri, SouthCarolina and Washington.On March 12, 1997, the Minneso-

ta Office of Lawyers of ProfessionalResponsibility issued the first advi-sory opinion approving the use ofcollaborative practice as a form of

Ethical Considerations in Collaborative Practice

Understanding Collaborative Practiceby Risa A. Kleiner


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limited representation that does notviolate the Minnesota Rules of Pro-fessional Conduct. The Collabora-tive Law Institute of Minneapolishad requested an opinion regardingthe application of the MinnesotaRules of Professional Conduct(MRPC) to the collaborative prac-tice of law model.The opinion held that a review

of the collaborative manual “doesnot reveal any significant source ofconcern regarding inherent viola-tions of the MRPC in the practice ofcollaborative law.” The opiniondoes, however, stress the need forclients to be alerted to the risks andbenefits of the process, includingthe fact that each attorney repre-sents only their own client, and thatthe discovery process will not beconducted through the court. Theopinion stated that the requirementfor attorneys to withdraw if the col-laborative process breaks down isnot inconsistent with the MRPC, solong as the client is given an ade-quate opportunity to obtain newcounsel.2

Four years later, on Sept. 1, 2001,Texas approved the collaborativemodel and modified its family codeto include collaborative law as analternate dispute resolution optionfor the dissolution of marriage. Thestatute requires “full and candidexchange of information betweenthe parties and their attorneys,” andreinforces the confidentiality ofalternate dispute resolution proce-dures. The statute also permits par-ties who have filed for divorce toask the court to suspend their pro-ceedings for up to two years whilethey attempt to resolve their issuesthrough the collaborative process.During this suspension, the attor-neys must provide a status report tothe court on the six-month anniver-sary of the filing of the complaintand on the one-year anniversary ofthe filing, at which time the attor-neys may file a motion for a contin-uance if the collaborative process iscontinuing. If the case has not con-cluded by the second anniversary,the court may elect to set it down

for trial or dismiss the complaint.3

The following year, on April 19,2002, the North Carolina State BarAssociation grappled with twoquestions: 1) whether a lawyer’sparticipation in a nonprofit organi-zation that promotes a cooperativemethod for resolving family law dis-putes would create a conflict thatprecludes him or her from acting asopposing counsel in a collaborativedivorce; and 2) whether it is a viola-tion of the lawyer’s duty of compe-tent representation to encourage aclient to participate in the processand to disclose information volun-tarily. (Note that in North Carolina,adultery has a bearing on an alimo-ny award, so full disclosure was aparticular concern.)The North Carolina Bar ultimate-

ly found no conflict with the Rulesof Professional Conduct, and con-cluded that: “A lawyer may repre-sent a client in the collaborativefamily law process if it is in the bestinterest of the client, the client hasmade informed decisions about therepresentation, the disclosurerequirements do not involve dis-honesty or fraud, and all partiesunderstand and agree to the specif-ic disclosure requirements.”4

In 2003, North Carolina added aprovision in its general statutes toinclude recognition of the collabo-rative process.5

In 2004, the Maryland State BarAssociation issued an ethics opin-ion in response to an attorney’squestion about the propriety of par-ticipating in a collaborative practicegroup with non-attorneys. The sub-sequent ethics opinion cautionedagainst using the group as a lawyerreferral system, but opined that“…there is nothing improper withmembers of the Bar being involvedin an organization such as the oneyou described whose purpose iseducational….” The opinion did notaddress any substantive issues con-cerning collaborative practice itself,but referred the writer to an opin-ion of “our sister Committee inNorth Carolina.”6

On May 11, 2004, the Committee

on Legal Ethics and ProfessionalResponsibility of the PennsylvaniaBar Association added its endorse-ment to the practice of collabora-tive law. In its Informal Opinion2004-24, the committee found noper se violation of the PennsylvaniaRules of Professional Conduct inthe use of collaborative practice solong as the attorney complied withthe Rules of Professional Conduct.Analyzing the possible conflict withthe duty of competence that theRPC’s impose, the committeenoted:

…competent representation does notnecessarily mean that you have toassist your client, the divorcingspouse, to receive the maximum dol-lar settlement possible. Clients oftenhave interests and goals that are non-financial. The Pennsylvania Rules ofProfessional Conduct recognize that itis perfectly proper for a lawyer toadvise a client about issues other thanwealth maximization….7

Joining the ever-increasing num-ber of approvals, in early 2005, theAdvisory Committee on Profession-al Ethics of the Supreme Court ofNew Jersey approved the use of col-laborative practice in the state.First, the committee addressed theissue of permitting lawyers andnon-lawyers to join together in anonprofit association committed tothe principles of collaborative law.The committee answered in theaffirmative “assuming that the activ-ities of the association do not them-selves amount to the Practice oflaw.”8 Next, the committee consid-ered the question of whether col-laborative practice is consistentwith the Rules of Professional Con-duct insofar as it requires the attor-neys to withdraw if the process failsand one of the parties turns to liti-gation. The committee held that,since the client is aware of thescope of the representation at theoutset, the limitations on the attor-ney should not be viewed as a with-drawal under RPC 1.16, but simplyas an outgrowth of the limited


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scope of representation to whichthe client has consented.In relevant part, the opinion

states:

The requirement that a lawyer with-draw if the collaborative process fails,however is not necessarily derivedfrom a lack of competence to engagein traditional adversarial litigation,but rather is compelled in order toprevent misuse of the collaborativeprocess to garner unfair advantage,both in terms of shared informationand resources expended on legal ser-vices. The parties know that neitherattorney is secretly building a caseagainst them during the collaborativeprocess for use in a later adversarialproceeding, thus providing a neces-sary confidence and incentive tocooperate fully in the process.9

The committee cautioned thatthe lawyers must determinewhether each client and each caseis appropriate for collaborativepractice, and must adequatelyinform the client about the processand secure his or her informed con-sent. It noted that some disputes inwhich the relationship of the par-ties is “so irretrievably beyondrepair that cooperative dialoguebetween them…is impossible” areill-suited to this process.10

In summary, the committee heldthat the limited representationmust meet the “reasonable” stan-dard of RPC 1.2(c), and must dis-close the potential risks and bene-fits of the collaborative process ascompared to the risks and benefitsof other methods of alternate dis-pute resolution and of traditionallitigation.11

In 2005, the Kentucky Bar Asso-ciation responded to the followingquestion from the CollaborativeLaw Group of Central Kentucky:Whether a lawyer may participatein a collaborative law process: a)that requires the parties to negoti-ate in good faith and voluntarily dis-close all relevant information, b)that encourages the lawyer to with-draw if the client fails to negotiate

in good faith or make the agreedupon disclosures, and c) that pro-hibits the lawyer from continuinghis or her representation of theclient if the parties are unable toreach a settlement. The resultingwell-reasoned opinion gave a “quali-fied” yes to each of these questions,emphasizing that the lawyer mustabide by the Kentucky Rules of Pro-fessional Conduct and must fullyexplain the collaborative lawprocess to allow the client to makean informed decision about partici-pating in the process.Kentucky permits attorneys to

withdraw from the process if theirclient fails to make adequate disclo-sure, makes fraudulent disclosure orotherwise fails to act in good faith.The client, however, must under-stand and agree to accept the limit-ed representation. Recognizing thatthe lawyer’s ultimate duty is toassist the client, the Kentucky BarAssociation’s opinion states: “If oneof the client’s objectives is to obtaina divorce in the most amicable waypossible, then it is incumbent uponthe lawyer to help the client findthe means to accomplish thatgoal.”12

On Feb. 24, 2007, the EthicsCommittee of the Colorado BarAssociation issued Advisory Opin-ion 115, holding that the signing ofa participation agreement by attor-neys is a violation of the ColoradoRules of Professional Conduct. TheColorado opinion states that thecollaborative participation agree-ment creates a non-waivable con-flict that impairs the lawyer’s abilityto adequately represent the client.This is based on a section of theColorado RPCs that describes cer-tain circumstances in which aclient’s valid consent cannot beobtained, language that is unique toColorado and does not appear inthe American Bar Association ModelRules. In a footnote, the opinionnotes that clients may sign an agree-ment to confirm their commitmentto the collaborative process inwhich they may agree to terminatetheir lawyers if the process termi-

nates. Thus, lawyers may assist theseclients in a collaborative divorceunder these circumstances.Calling the Colorado opinion an

“aberration” among ethics opin-ions, various legislative acts approv-ing collaborative practice and localrules in several states that authorizethe use of participation agree-ments, the Advisory Committee ofthe Supreme Court of Missouriissued Formal Opinion 124 approv-ing collaborative practice in thatstate. Finding no basis for Col-orado’s conclusion, Missouri’s opin-ion states:

As a matter of professional ethics, it isdifficult to reconcile the ColoradoOpinion with the fundamental princi-ple that clients have the right to con-trol the role of their lawyers (includingrequiring them to withdraw), thescope of the lawyer’s work, and theresolution of their own disputes.13

A decade after Minnesota’s firstethics opinion, on Aug. 9, 2007, theAmerican Bar Association issuedFormal Opinion 07-447 on the ethi-cal considerations in collaborativelaw. The ABA noted that collabora-tive practice has “spread rapidlythroughout the United States andinto Canada, Australia and WesternEurope” and that the process“…creates a problem-solving atmos-phere with a focus on interest-based negotiation and clientempowerment.”14

In pertinent part, Opinion 07-447 states:

…we agree that collaborative lawPractice and the provisions of thefour-way agreement represent a per-missible limited scope representationunder Model Rule 1.2, with the con-comitant duties of competence, dili-gence and communication. We rejectthe suggestion that collaborative lawPractice sets up a non-waivable con-flict under Rule 1.7(a)(2).15

Basing its opinion on the ModelRules of Professional Conduct, theABA confirmed that a lawyer may


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represent a client in the collabora-tive law process as long as thelawyer complies with the Rules ofProfessional Conduct and thelawyer advises the client of the ben-efits and risks of participation andthe client provides informed con-sent. The ABA noted that, with theexception of the Colorado Bar Asso-ciation, all of the bar associationsthat have considered endorsing col-laborative practice have done so.The ABA rejected Colorado’s viewthat the participation agreementthe parties and their counsel signcreates a non-waivable conflict.

Responsibilities to third parties consti-tute conflicts with one’s own clientonly if there is a significant risk thatthose responsibilities will materiallylimit the lawyer’s representation ofthe client. It has been suggested thata lawyer’s agreement to withdraw isessentially an agreement by thelawyer to impair her ability to repre-sent the client. [Colorado Bar Ass’nEth. Op. 115] We disagree, becausewe view participation in the collabo-rative process as a limited scope rep-resentation. [ABA Op. 07-447, p. 4]

A client’s agreement to a limitedscope representation does notexempt the lawyer from the duties ofcompetence and diligence…. Ibid.

In reaching its opinion, the ABAreferenced Lerner v. Laufer,16 inwhich the court stated that “the lawhas never foreclosed the right ofcompetent, informed citizens toresolve their own disputes in what-ever way may suit them.” In addi-tion, the ABA noted that the AlaskaBar Association, the Arizona StateBar Association and even the Col-orado State Bar Association have allissued ethics opinions approvinglimited scope representation inthese states.17

MOVING FORWARD: THEUNIFORM COLLABORATIVE LAWACTThe Uniform Collaborative Law

Act (UCLA), drafted in 2009 andamended in 2010, has, to date, been

adopted in Texas, Utah and Nevada.Approval is pending in Ohio, andthe law has been introduced inAlabama, Massachusetts, Hawaii andthe District of Columbia. The NewJersey Law Revision Commission iscurrently reviewing the act. At itsannual convention in August 2011,however, the ABA delegates failed toapprove the adoption of the UCLAwith strong opposition comingfrom the Litigation and YoungLawyers sections. It will undoubted-ly be placed before the ABA dele-gates again next year, with furthersupport from the growing numbersof collaboratively trained attorneyspressing for recognition and accep-tance.As collaborative practice

becomes ever more widespread,the need to create uniformity in theprocess increases. Ultimately, lookfor collaborative practice to take itsplace with other forms of alternatedispute resolution as an option forparties who seek to have a lessadversarial divorce and more inputinto the process. �

ENDNOTES1. Kentucky Bar Association,

Ethics Opinion KBA E-425(June 2005).

2. Office of Lawyers ProfessionalResponsibility, Minnesota Judi-cial Center, Advisory Opinion,March 12, 1997.

3. Texas Family Code, Title 1. Ch.6. Sec. 6.603. C., Subchapter G.

4. Nat’l Rep. on Legal Ethics &Professional Responsibility,N.C. 2002 Formal Ethics Opin-ion 1 (April 19, 2002).

5. General Statutes of North Car-olina, Chapter 50, Art. 4, Sec. 50-70 et seq.

6. Maryland State Bar Association,Docket 2004-23, Ethics Opin-ion.

7. Maryland State Bar Association,Docket 2004-23, Ethics Opin-ion, p. 6.


9. Maryland State Bar Association,

Docket 2004-23, Ethics Opin-ion, p. 6.


11. Maryland State Bar Association,Docket 2004-23, Ethics Opin-ion. p. 9.

12. Kentucky Bar Association,Ethics Opinion KBA E-425(June 2005), p. 5.

13. Advisory Committee of theSupreme Court of Missouri, For-mal Opinion 123, CollaborativeLaw, p. 3.

14. Ethical Considerations in Col-laborative Law Practice, Ameri-can Bar Association, StandingCommittee on Ethics and Pro-fessional Responsibility, FormalOpinion 07-447, Aug. 9, 2007, p.1-2.

15. Ethical Considerations in Col-laborative Law Practice, Ameri-can Bar Association, StandingCommittee on Ethics and Pro-fessional Responsibility, FormalOpinion 07-447, Aug. 9, 2007,p.3.

16. 482 N.J. Super. ____ (App. Div.__), cert denied, ___N.J. ___(2003)

17. Alaska Bar Association EthicsOpinion No. 93-1 (May 25,1993); Arizona State Bar Associ-ation Ethics Opinion 93-03(Jan. 15, 1991); Colorado BarAssociation Ethics CommitteeFormal Opinion 101 (Jan. 17,1998.)

Risa A. Kleiner is an accreditedprofessional mediator and atrained collaborative attorneywho practices family law andmediation in her own practice inPrinceton.


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We have all beenthrough it. You are fin-ishing up a long andstressful negotiation by

drafting a property settlement agree-ment on the eve before your firstscheduled day of trial. The parties aretrying to change positions at the lastminute, and you are desperately tryingto hold your hard-fought agreementtogether. Trying to not create any addi-tional issues that will prolong thecase, you address the retirementaccount division as follows:“Husbandhas a retirement account through hisplace of employment. The partiesagree that the marital portion of theaccount shall be equally divided byway of Qualified Domestic RelationsOrder within thirty (30) days of theJudgment of Divorce.”This provision, or some similar ver-

sion, is how most settlement agree-ments dispose of retirementaccounts. Often, attorneys do not doany discovery about the parties’ retire-ment assets beyond having themidentified by the parties on theirrespective case information state-ments. Most of us decide to not spendtime on retirement assets because it isa foregone conclusion that the maritalportion will be equally divided. Unfortunately, by taking the

approach just discussed, you areopening yourself up to another sixmonths to a year of having this par-ticular client in your life and chokingup your switchboard. As your client’sbill and frustration level increases, heor she begins to think you are theone dragging the case out. You haveto repeatedly deal with either one of

the parties’ employers or with aqualified domestic relations order(QDRO) specialist. Worst of all, youmay be committing malpractice.In an effort to provide a working

framework for thinking about retire-ment accounts, there are eightstraightforward questions you shouldask yourself when a case comesacross your desk that has a retirementaccount subject to equitable distribu-tion. The purpose of these eight basicquestions is to get you thinking aboutpractical issues before that final hour,when you are trying to get an exe-cuted agreement and neither partynor the attorneys can absorb an addi-tional issue raised at the 11th hour.The questions you should be ask-

ing and/or addressing are as follows:

1. WHO WILL BE RESPONSIBLEFOR HANDLING THE DIVISIONOF RETIREMENT ASSETS,INCLUDING THE DRAFTING OFANY NECESSARY QDROS, ANDWHO WILL PAY FOR THEQDROS?Before even getting into the

specifics of dividing the plan, youneed to answer the threshold ques-tion of who is going to divide theplan. This is not a question to askand answer after the date of theuncontested hearing or the finalday of trial. Determining who willbe responsible and, more impor-tantly, who will pay for the divisionof the retirement assets is an essen-tial part of resolving the case.There are two things to keep in

mind when addressing this question.First, have you protected yourself

from being obligated to ensure thatretirement assets are divided? Con-sidering the length of time it takessome QDROs to be drafted, and theway some litigants drag their feetafter the divorce is finalized, attor-neys need to think hard aboutwhether they want to be responsi-ble. Consider putting a clause in yourretainer agreement stating that youare not responsible for any post-judg-ment work, such as the drafting ofQDROs, absent a separate writtenretainer. It is recommended that youconsider placing a provision in yoursettlement agreements that specifi-cally delineates responsibility forobtaining QDROs. Given the substan-tial potential of malpractice claimssurrounding retirement accountsthat were either never drafted ordrafted incorrectly, it is importantthat you shield yourself from liability,unless you want to be responsible formaking sure your client’s retirementaccount is divided.Second, if you have agreed to

take on the task of dividing theaccount, are you going to draft theQDRO yourself or are you going tohire a company to do it? Regardlessof which road you elect to take, youare ultimately responsible to ensurethe QDRO is correctly drafted byplacing your signature on it.

2. WHAT KIND OF PLAN DO THEPARTIES HAVE?When you draft your client’s case

information statement (CIS) orreview the other party’s CIS, youshould immediately determine if theplan is a defined benefit or defined

QDRO PitfallsWhat Questions Should You Be Asking When Drafting QDRO Provisions?by John Nachlinger


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contribution plan. Generally, adefined contribution plan is one inwhich the employer, the employee,or both, contribute money into theaccount, and there is always a cashbalance. The most common of theseplans are 401ks and individualretirement accounts (IRAs). Theamount in the plan fluctuates dailydue to market forces, and there is noguarantee of how much will be inthe plan in the future. A defined ben-efit plan is commonly referred to asa pension, where the employee hasa guaranteed benefit in the future,usually based upon the number ofyears of employment. While mostdefined benefit plans pay out a spe-cific monthly figure upon retire-ment, some have other options,such as a lump sum payment.Understanding what type of plan

you are dealing with is very impor-tant, because you have to under-stand what you are dividing. All ofthe other issues you need to addressare interrelated with the type ofplan, such as market fluctuations,loans, cost of living adjustments andsurviving spouse benefits. For exam-ple, you should not divide a pensionwithout taking into account gainsand/or losses. However, it is not sur-prising that many attorneys willdraft inconsistent retirement provi-sions. Additionally, be sure to put thefull, correct name for each plan inthe settlement agreement. Merelyreferencing a “401k plan” may pre-sent problems and be fertile groundfor post-judgment litigation.

3. CAN THE PLAN BE DIVIDEDAND, IF SO, IS A QDRONECESSARY?There are some plans that cannot

be divided with a QDRO, and othersthat can be divided without thenecessity of a QDRO. Engaging in dis-covery before finalizing the divorce,and determining whether andthrough what method the retirementaccount can be divided, is essential. If you are dealing with a military or

government pension, you can dividethe account, but the requirements ofthe court order differ significantly

from that of a typical QDRO, especial-ly depending on whether the individ-ual is still active or retired. Theseorders are typically called retired paycourt orders, as opposed to QDROs.Keep in mind, the Defense Financeand Accounting Service will not makepayments directly to the non-militaryspouse who was married to the mili-tary spouse for less than 10 years.Additionally, the titled spouse musthave been performing military dutyduring the entire 10 years (or more).If you are dealing with a military pen-sion, you may have to be creativewhen dividing the marital portion ifthe military will not divide it. When dividing an IRA or simpli-

fied employee plan (SEP), a QDRO isnot necessary. By inserting stock lan-guage into a settlement agreementthat an IRA will be divided by QDRO,unneeded confusion will ensue. Typi-cally, division of an IRA only requiresa letter of instruction from the titledspouse, along with a copy of the finaljudgment of divorce and settlementagreement, providing that a portionof one party’s IRA will be rolled overinto the other party’s IRA.If you are dealing with a non-ERISA

plan,1 a QDRO may not be sufficientto divide the account, since the planadministrator is not required to honorthem. This is why you should discoverwhether a QDRO is necessary beforefinalizing the divorce. If, for some rea-son, you cannot determine how aplan can be divided prior to thedivorce, be sure to put alternative lan-guage in the settlement agreement inthe event a QDRO cannot be draftedand/or enforced.A side issue to consider is whether

the cost of the QDRO is justified inlight of the size of the retirementaccount. For example, if there is $2,000in a 401k, it makes little sense for aparty to pay $500 (or more) in fees tohave a QDRO drafted to provide himor her with half of the account. A goodrule of thumb is that any defined con-tribution plan with less than $10,000should simply be tax affected, dividedon paper, and credited to the non-titledspouse against another asset subject toequitable distribution.

4. WHAT PORTION OF THE PLANWILL THE NON-TITLED SPOUSEBE ENTITLED TO, AND WHATWILL BE THE DATE OFDIVISION?At first glance, this inquiry may

seem simple. However, many settle-ment agreements fail to specificallyexplain what portion of the retire-ment account will be awarded to thenon-titled spouse. In addition, manyagreements do not set forth a pre-cise date for the division of assets.There is actually quite a bit of post-judgment litigation on these issues.Unless you are giving a specific

dollar figure that is not being adjustedfor passive gains or losses to the non-titled spouse, it is important to alwaysstate the date of division in the agree-ment. For example, the agreementcould say: “Wife shall receive one-half of Husband’s XYZ Company401k account balance as of the datethe complaint of divorce was filed,specifically January 1, 2010.” With-out this information, post-judgmentlitigation might ensue to determine ifthe date of the complaint, the datethe agreement was signed, the date ofthe judgment, or some other dateshould be the date of division. Thestakes could be very high if you aredealing with a 401k or IRA during asubstantial change in the stock mar-ket. Failing to be specific could costyour client thousands of dollars.

5. WILL THE DISTRIBUTION BEADJUSTED FOR MARKETGAINS AND/OR LOSSES?The process of dividing retire-

ment accounts post-judgment cantake a long time. During the wait,the market can do many things. Forexample, the U.S. may almost defaulton its debt and sustain a stock mar-ket tumble of 10 percent. If you donot adjust the distribution for pas-sive gains and/or losses, that 10 per-cent tumble will only be absorbedby one party. Determining the dateof division is merely the first step inensuring an equitable distribution. Whether you want the distribution

adjusted for gains and losses dependson which party you represent. How-


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ever, if you agree that the amount willbe adjusted, neither party’s interestwill be adversely affected by the delayin drafting a QDRO and dividing theaccount. It is strongly urged thatgains/losses should always be includ-ed to ensure an equitable distributiongiven the realities of preparing andenforcing QDROs. However, withoutspecific language referencing gainsand losses, your client will not be enti-tled to share the benefit of gains orpain of losses.

6. WILL THE NON-TITLED SPOUSEBE ENTITLED TO SUBSEQUENTCONTRIBUTIONS BY THETITLED SPOUSE/EMPLOYEE ORTHEIR EMPLOYER?At first glance, this question may

seem simple. If you represent thetitled spouse, why would you everagree for the non-titled spouse tobenefit from post-complaint contri-butions to an account? However, bynot doing sufficient discovery andcarefully drafting the settlementagreement or making the correctarguments at trial, you could be giv-ing a substantial benefit to the non-titled spouse. This is one area whereattorneys must be very careful.Our courts have routinely ruled

that when dividing a defined benefitplan at the time of the titled spouse’sretirement, the value of the plan“necessarily reflect[s], to somedegree, post-divorce work effort[s].”2

Given the complicated methods onewould have to employ to not onlyapply a coveture fraction to retire-ment benefit (number of years mar-ried/number of years employed), butto also discount the benefit for post-complaint efforts, it is no wonderthat this issue does not come upoften. With most pensions, the bene-fit is tied to the number of yearsemployed at the company, whichmeans that the non-titled spouse willnot share in post-complaint efforts. A great example of the dangers in

drafting retirement provisions cameto light in the recent case of Barr v.Barr.3 In the settlement agreement,the parties agreed “[t]he Wife willreceive 50% of Husband’s pension

benefits attributed to his 11 years inthe military service only. Such benefitsare to be distributed when Husbandcommences receiving same.”4 Thehusband held the rank of captain atthe time of the divorce.5 However, 19years after the parties divorced, heretired after obtaining the rank ofmajor.6 Post-judgment litigationensued about how much the wife wasactually entitled to from the monthlybenefit, since the husband’s total pay-ment increased substantially due sole-ly to his post-divorce promotion.7

The court reviewed the provi-sion, and determined it was ambigu-ous regarding whether the provi-sion, as drafted, gave the wife aninterest in 50 percent of the totalpayment adjusted only by a cov-eture fraction or whether, due to thephrase “military service only,” sheonly has an interest in the benefitsaccruing during the 11 years at hisrank of captain.8 Therefore, thecourt remanded for a plenary hear-ing to determine the intent of theparties when they entered into thisagreement over 20 years ago, as wellas “whether the increase in [Hus-band’s] pension resulted from sepa-rate post-divorce work.”9 This caseprovides a clear illustration of whathappens when retirement provi-sions are not drafted with a suffi-cient degree of care and specificity. In dealing with defined contribu-

tion plans, there are many instanceswhere the employer and/or employ-ee make contributions to the planonly once a year, such as after Dec. 31.It is important to discover how thecontributions are made, so your clientdoes not lose out on money. Forexample, if you set a division date ofOct. 1, 2011, but the employer contri-bution will not be made until Jan. 15,2012, for calendar year 2011, the non-titled spouse will lose out on money.In fact, that spouse will lose out onnine months of retirement contribu-tions that were made in a lump sumin Jan. 2012. If this situation arises inyour case, be sure to specify in the set-tlement agreement that the non-titledspouse will receive a proportionateshare of contributions made to the

plan for 2011, attributable to the peri-od ending Oct. 1, 2011.

7. IS THERE A LOAN AGAINSTTHE PLAN THAT IS MARITAL INNATURE? IF SO, HOW WILLTHAT BE DEALT WITH IN THEDIVISION OF THE PLAN?Often retirement accounts,

whether defined benefit or definedcontribution, have one or more loansoutstanding against them. Given thehardships most people have inobtaining credit in this economy,loans against retirement assets are asimple way to obtain necessaryfunds. The first step is to determine ifthere is a loan, which is sometimesharder than it sounds. The plan docu-ments themselves may have the loanlisted as an asset against the account,or not even list the loan at all. Typi-cally, the best way to determine thata loan exists is to look at the titledspouse’s pay stubs, which will likelyshow repayment. In general, this is anarea where you must be very diligentabout conducting discovery. Once you determine there is a

loan, determine if it is marital pur-suant to N.J.S.A. 2A:34-23.1 and rel-evant case law. As that is not thefocus of this article, it will not bediscussed here. If the loan is mari-tal, it must be dealt with in the con-text of dividing the account.When dealing with a defined con-

tribution account, a loan reduces thedivisible value of the account. If theloan is marital, it may be appropriateto reduce the account balance bythe amount of the loan, so both par-ties share in the cost of the loan. Ifthe loan is not marital, it may beappropriate to add the value of theloan to the account balance prior todividing the retirement account toensure the non-titled spouse obtainsthe full benefit of the account. You should conduct discovery to

determine if the plan will allownon-liquid assets, such as a loan, tobe divided. Many plans will notallow a loan to be assigned to thenon-titled spouse. One obvious rea-son is that the repayment of theloan is typically automatic through


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wage garnishment from the titledspouse’s paycheck. If the plan willallow a loan to be divided, then theQDRO can be drafted to divide theloan per your agreement. However,if the loan cannot be divided, as isnormally the case, you must findanother way to deal with the loan.One thing to pay special attention

to is a loan, or withdrawal, taken afterthe settlement agreement is execut-ed before a retirement account isdivided. Be sure to include languagethat the non-titled spouse’s interestin the account is to be calculatedwithout regard to any loans or with-drawals made by the titled spousebefore the date of distribution(unless, of course, you agree that aloan will be divided). You may alsowant to include language prohibitingthe titled spouse from taking out anyloans or making any withdrawalsuntil the QDRO has been effectuat-ed. The key is to protect your clientfrom all possible methods of dilutinghis or her interest in the account.

8. CAN THE NON-TITLEDSPOUSE’S INTEREST IN THEPLAN BE GUARANTEED?Finding a way to guarantee the

non-titled spouse’s interest in aretirement plan is often one of themost overlooked, yet important,aspects of distributing an account.There are many ways to address thisissue in a settlement agreement toavoid post-judgment litigation. Themost common way to guarantee theinterest is through the designationof a surviving spouse. The most complicated area is

naming a surviving spouse indefined benefit plans. Failure tounderstand how to handle this des-ignation can cost your client dearly,and can open you up to a massivemalpractice claim. Put simply, if thenon-titled spouse is not designatedas the surviving spouse, that spousewill get absolutely nothing if thetitled spouse dies prior to retire-ment. This article does not have suf-ficient space to discuss all of theissues involved with naming thesurviving spouse, but in general

terms, if the titled spouse dies priorto retirement, the surviving spousewill receive a qualified pre-retire-ment survivor annuity (QPSA). If the non-titled spouse is not

named as the surviving spouse, heor she will get nothing if the titledspouse dies. Assuming the non-titled spouse was supposed toreceive one-half of the pension, heor she will only get 25 percent if heor she is only named as the surviv-ing spouse on his or her portion ofthe pension. If that spouse is nameda surviving spouse for the entireQPSA, he or she will receive the full50 percent of the pension, upon thetitled spouse’s death. It is veryimportant that you are specific, andensure that the QDRO is draftedcorrectly to protect your client.On the other hand, most defined

benefit plans physically divide theaccount upon retirement pursuantto a QDRO and, therefore, the deathof a titled spouse, post-retirement,has no effect on the non-titledspouse’s interest. There are someexceptions to this general statement,so it is important to conduct discov-ery and obtain the plan documents.When dividing a defined contri-

bution plan, naming the non-titledspouse as surviving spouse will sim-ply ensure he or she receives theportion of the account agreed to inthe settlement agreement. It isessential that the designation of sur-viving spouse only applies to thenon-titled spouse’s share of theaccount. If you name the non-titledspouse as surviving spouse for theentire account and the titled spousedies prior to distribution, the non-titled spouse may receive the entireaccount. As with all the topics cov-ered here, it is imperative that youmake sure the settlement agree-ment and QDRO are carefully draft-ed to ensure the intent of the par-ties is correctly reflected.If you cannot name a surviving

spouse for some reason, such as theplan will not allow an ex-spouse tobe named, look into life insurancepolicies to secure the retirementasset. Specifically, it is defined bene-

fit plans that are being referred to inthis context. These benefits areoften a great deal of money, and anon-titled spouse is often relyingupon the benefits, so ensuring he orshe receives money during retire-ment is imperative.In conclusion, there are many

issues to keep in mind while nego-tiating settlement agreements ortrying a case where retirementaccounts exist. This article is notintended to serve as a comprehen-sive discussion of all these issues.The purpose here is to get youthinking about retirement accountsand help you recognize that divid-ing them is more complicated thanmerely stating that the account(s)will be divided by a QDRO. Keepingthese points in mind can help youavoid opening yourself up to post-judgment litigation that will upsetyour client, try your nerves, andkeep your file open for manymonths to come. �

ENDNOTES1. The Employee Retirement

Income Security Act of1974 (ERISA) (Pub. L. 93-406,88 Stat. 829, enacted Sept. 2,1974) is an federal statute thatestablishes minimum standardsfor pension plans in privateindustry, and provides forextensive rules on the federalincome tax effects of transac-tions associated with employeebenefit plans.

2. Menake v. Menake, 348 N.J.Super. 442, 454 (App. Div.2002).

3. Barr v. Barr, 418 N.J. Super. 18(App. Div. 2011).

4. Id. at 29. 5. Id.6. Id. 7. Id. at 30.8. Id. at 37-38. 9. Id. at 38-39.

John Nachlinger is senior associ-ate with Romanowski Law Officeslocated in Brielle, where hedevotes his entire practice to fami-ly law.


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The rules have always beendifferent for familylawyers. We cannot takemortgages.1We cannot pay

referral fees.2 There are page limita-tions on our client’s certifications.3

Our billings and requests for coun-sel fees pendente lite must bescrupulously specific. Even so, weoften collect far less than the valueof our services, and are compelledto carry large receivables. We aretreated differently than other litiga-tors, since the funds spent on thelitigation process reduce theincome and assets available to helpfamily members meet necessaryexpenses, both before and afterdivorce. Yet, while family lawyers,particularly those representing thespouse who is not in control of thefamily funds, bear this burden, thereis much that can, and should, bedone by the courts, particularly dur-ing the discovery phase of thecase, to maintain the proverbialeven playing field.4

Forty years of case law tells usthat the income and assets subjectto distribution belong to both par-ties.5 The discovery process isintended to place both litigants onlevel ground in litigation.6 Too fre-quently, however, this principle ismerely afforded lip service. A non-owner, supported spouse can easilyexhaust limited resources trying toobtain information that should bereadily available. The result is oftena lop-sided settlement, and drasti-cally diminished economic securityfor the parent who has the day-to-day responsibility for meeting thechildren’s needs.In most marriages where there is

a business or professional practice,the party who controls the econom-

ic information also controls the eco-nomic resources. The supportedspouse is forced to incur counselfees to obtain information on his orher own assets, and invariably isrequired to deplete assets which aremeant for his or her future security.Perhaps the following scenario is

familiar:You represent Joan who has

been married to Hank for 11 years.They have children. Joan, previouslydivorced, has not worked outsidethe home since she was 18, whenshe worked as a waitress. Hankowns a closely held business withhis cousin, Vinnie.Hank pays the family bills and

controls the investments. It is a mat-ter of extreme pride to Hank that he‘takes care of the family.’ For Joan toask questions about accounts or taxreturns would be viewed as anaffront to his role as ‘provider.’ Joanhas free use of charge cards and allthe cash she needs. They have onejoint checking account, used primar-ily by Joan, into which Hank depositsmoney ‘as needed.’ The business paysfor Joan’s BMW SUV, Hank’s RangeRover and Hank’s mother’s car, aswell as the home phone, all familycell phones and cable TV, which isalso in Hank’s office.They go to Cancun every April,

stay in the presidential suite at afive-star hotel, and fly first class.Long weekends are spent in LasVegas, Atlantic City and Aruba,where their room is often comped.Meals, cigars, vacations, gasoline, carrepairs and other personal expens-es are charged on credit cards inthe name of Hank’s business. Joan isa secondary card holder on one ofthese cards, which she uses for hergas purchases.

They live in a 6,000-square-foothome, which is beautifully land-scaped. The value is $800,000, and itis encumbered by first and secondmortgages totaling $650,000. A por-tion of the debt went to place thedown payment on a beach house,which was owned for several yearsbut sold to pay damages in a lawsuitfiled against Hank’s business andHank personally.The parties have cleaning help

twice a week, and the two childrenattend private school. Hank’s moth-er is half owner of the marital resi-dence, as she contributed to the ini-tial down payment. The parties havepaid the mortgage without assis-tance from Hank’s mother. Hankowns 50 percent of his mother’shome. Joan has no exempt assets.The parties have more than

$50,000 in credit card debt, andHank has not made estimated taxpayments on the current or lastyears’ tax returns. Hank’s reportedincome is $165,000 per year. Joanhas no clue what she spends, so hercase information statement consistsentirely of estimates. Hank is 48,and Joan is 45.As Joan’s attorney, you find your-

self in the position where deter-mining the value of the businessand its real cash flow is critical.Joan’s interest in the marital resi-dence is small, and it appears thatshe will be liable on the debt. Shewill need whatever cash she canrealize from her interest in the busi-ness to acquire a residence, and shewill need substantial alimony inorder to maintain a lifestyle sub-stantially similar to the way the cou-ple lived during the marriage.You are proactive, and send

interrogatories and a notice to pro-

Discovery—It’s Time to Turn the Tablesby Bonnie Reiss


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duce requesting five years of busi-ness and personal financial recordsto adverse counsel, as soon as headvises you he will be representingHank. They are ignored. Letters andphone calls follow, generating fees.You attend the first case manage-ment conference 70 days after youpropounded your notice to pro-duce. The timeframes set by therules for compliance with discov-ery demands are ignored, and theresulting order allows 60 days forHank to furnish answers.7

Hank’s attorney represents thathis client is willing to pay theretainer for a joint forensic accoun-tant to value the business, but not aseparate accountant for Joan. Facedwith the prospect of filing a motionbefore a judge who will ask whyyou want your own ‘hired gun,’ youagree to engage a joint expert.At the second case management

conference, 60 days later, Hank’sattorney says they need an addi-tional two weeks to provide the dis-covery you requested. Of course,the request is granted. The case isnow more than four months old.When the response to your dis-

covery demands arrives, it is incom-plete and disorganized. There is nowritten response to the notice toproduce, only a box of documentsthat are not labeled as correspond-ing to the numbered demands onthe interrogatories or notice to pro-duce. Records that have beenscrupulously maintained through-out the marriage are suddenly miss-ing. Personal bank statements arespotty. There are no cancelledchecks. You are provided with a fewrandom months of credit card state-ments. Some are from the sameissuer, but bear different accountnumbers. There is no indicationwhether they relate to the sameaccount, whether the account num-ber has been changed because of amerger or takeover of the financialinstitution, or if there are multipleaccounts. There is no indicationwhen the accounts were opened,since all reflect balances.The response to the demand in

your notice to produce for businesschecks and credit cards indicatesthat “all business records have beenprovided to the accountant.” Youcall the accountant and find thatthey do not have cancelled checksor credit card statements. “Not in lit-igant’s possession” is anotherresponse to many of the demandsin the notice to produce.You also receive a typed docu-

ment titled “Answers to Interrogato-ries.” It is not signed. “See Notice toProduce” is the response to manyquestions, without reference towhat demand in the notice is beingreferenced.8 Where the interrogato-ry asks for a narrative response,there is none. Many interrogatoriesare answered with “To be supplied.”Your client must pay for hours

spent inventorying documents andpreparing a deficiency letter inwhich you tell the business owner,who gathered the documents, whathe has failed to provide (as if he didnot already know). The deficiencyletter is ignored. N.J.R. 5:5-1 pro-vides that, in pre-judgment cases,discovery of income and assets thatare not otherwise exempt are sub-ject to the same rules of discoverythat govern other civil litigation.9 Ifa party objects to the production ofany requested item, the burden ison that party to raise a specificobjection within 35 days, and statethe basis of the objection. If noobjection is made within that timeperiod, and the item is not pro-duced, the party submitting the dis-covery demand may move for anorder of suppression or dismissalpursuant to Rule 4:23-5, which pro-vides, “[u]nless good cause for otherrelief is shown the court shall enteran order of dismissal or suppressionwithout prejudice.”10 The recalci-trant party must pay a restorationfee of $100 if a motion to vacate ismade within 30 days of the entry ofthe order of dismissal or suppres-sion, and $300 if such a motion isfiled thereafter.11 If an application toreinstate is made within 90 days,the court may require the paymentof sanctions, counsel fees or both,

as a condition for restoration. If thefailure to comply with a discoverydemand persists, pleadings may bestricken, with prejudice.12

The dismissal of the pleadings ina divorce case is not even a pyrrhicvictory. In most cases, the parties’initial pleadings seek a divorce,both seek equitable distributionand the information necessary toenter a support award is in the pos-session of the party withholdingthe discovery. Thus, striking thepleadings of the recalcitrant party isuseless. Pleadings are always rein-stated. Even if a court declined toreinstate, the dependent spousecannot receive his or her fair shareof the marital estate without theeconomic information the support-ing spouse controls.Knowing that dismissal will do

nothing to move the case forward,you file a motion to compelresponses.13 These are the kinds ofmotions judges dread, since theyare time consuming. The businessowner’s defenses to your motioninclude “business disruption,” that itis “too burdensome” to gather therecords or that the records are lost.A common defense is that the

demand is overly burdensome, asevidenced by the fact that therecords requested were notrequired by the joint forensicaccountant. This argument ignoresthe critical difference between therole of the joint expert and an attor-ney for a party. The accountant usu-ally sends a ‘preliminary’ demand.The forensic accountant may be sat-isfied to use QuickBooks® to con-duct a valuation and rely on thebusiness owner’s own Quick-Books® categorization of expenses,adding back those he finds to bemiscategorized. However, thisapproach may miss company paidexpenses from which the partieshave derived personal benefit.QuickBooks® are often monthsbehind, and rarely reflect currentspending.Equitable distribution of a family

business or professional practiceinvolves exactly the same issues, and


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requires the same discovery as anaction between warring sharehold-ers. The claim that documents neednot be provided because the court’sexpert has not similarly deemedthem critical to his or her valuationor an analysis of cash flow is a base-less objection. The expert’s opinionis not etched in stone. He or she issubject to cross-examination. With-out documents that may challengerepresentations the owner hasmade to his or her accountant orthe expert, the dependent spouse’sability to conduct cross-examinationof the expert or the adverse party ishamstrung. Nevertheless, judgesoften give this ‘defense’ to a discov-ery motion serious consideration,since, at this point in the litigation;he or she is dealing with an oldcase, which is clogging the calendar.The employment of a joint

accountant often places the non-moneyed spouse at a disadvantage.His or her employment is usuallythe result of a desire to save on liti-gation expenses. The accountant istypically paid by the businessowner, often from the accounts ofthe business itself. Characteristical-ly, the business owner will assertthat the business is experiencing areduction in revenues or increase inexpenses. Justifiably concernedabout having his or her own billpaid, the forensic accountant maybe hesitant to provide a lifestyleanalysis after being told that thebusiness owner doesn’t want to payfor it.As Joan’s attorney, you need to

address issues of credibility that areof lesser consequence to the ‘joint’expert.Where the business owner

claims not to retain checking orcredit card records, the offer of asigned authorization allowing coun-sel or the supported spouse tosecure the records directly from thefinancial institutions may be thebest result obtainable. However,here too, counsel still faces hurdles.Credit cards and cash or brokerageaccounts ‘inadvertently’ may nothave been disclosed in answers to

interrogatories or a case informa-tion statement. Many institutions,even if provided with an authoriza-tion, still require a subpoena. If theinstitution is out of state, theprocess is particularly burdensome.At the very least, the authorizationprocedure carries delays and iscostly, since a bank may charge aper check and per statement photo-copying fee, which, again, imposesthe cost on the party who has theleast access to economic resources.The remedies provided under

the court rules are inadequate, andmost often impose an enormousfinancial burden on the dependentspouse forcing the litigant with lim-ited funds to dissipate assets just toget the basic information necessaryto assert their rights.In reality, these ‘defenses’ assert-

ed by the business owner are aimedat more than frustrating discovery.The spouse controlling the moneyand the information uses his or herstatus as keeper of the keys to thekingdom to manipulate the litiga-tion process and wear down theparty with limited economicresources. In order for the depen-dent spouse to get to the pointwhere meaningful negotiations cantake place, he or she is faced withthe prospect of spending thousandsof dollars in legal fees, and account-ing and reproduction costs to havea business or financial institutionprovide necessary records.Moreover, the protocol set forth

in the court rules, aside from beingcumbersome and ineffective in fam-ily law matters, runs contrary to therules’ stated purpose. The commentto N.J.R. 4:18-1 makes clear that the“evident purpose” of the rule is “toremedy the practice,… of providingdocuments in a helter skelter fash-ion, placing upon the demander ofdocuments the onus, with its atten-dant expense and delay of sortingthrough the material produced,much of which is often irrelevantto the demand.”14 Yet, from the out-set the onus is on the demander ofthe documents, the spouse withoutaccess to family income or assets, to

incur the expense of creating thedemand, following up, sortingthrough documents, preparing defi-ciency letters, filing motions and/orultimately paying to obtain the doc-uments from the institutions viaauthorizations or subpoenas.While the business owner’s ‘liti-

gation strategy’ of ignoring, oppos-ing and delaying discovery may be acost of doing business in a corpo-rate chancery action, in the familycourt, it frustrates the dual objec-tive of evening the playing field andmaximizing the resources availableto meet the needs of two house-holds post-divorce. This ‘strategy’drains economic resources anddeprives children of camp, lessons,and enrichment programs, perhapseven college. Ultimately, it fuels ani-mosity between parents and risksthe emotional well being of theirchildren.The problem is exacerbated

because parties do not have equalaccess to the funds with which topay counsel fees. Even though theburden of obtaining discovery andsecuring support, enforcement andother relief require counsel for thesupported spouse to put in manymore hours than counsel for theparty who controls the informationand economic resources, frequentlythe supported spouse’s attorney isnot being paid on an ongoing basis.As a receivable grows, it becomesincreasingly difficult to justify tothe court. The consequences of thesupporting spouse’s delays in pro-viding necessary documentsinevitably harms the dependentspouse, who is more likely to incurthe displeasure of the trial judgewhen the case ages, but is not trialready.Too often, the dependent

spouse, whose fees have becomeunaffordable, is faced with the Hob-son’s choice of settling a case withinadequate discovery or going for-ward to assert legitimate financialclaims, knowing that whatever isgained will be offset by theincreased fees. Yet, where the par-ties lived a lifestyle whose expenses


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were paid by the family business,there may be no choice if the sup-ported spouse is to receive a fairshare of the assets and maintain anysemblance of the marital lifestyle.Often, the only way the depen-

dent spouse can gain access to fam-ily funds to pay his or her fees is byfiling a motion. This is also anexpensive endeavor. Under Rule5:3-5, it is not sufficient for an attor-ney to simply submit a paragraphdetailing his or her experience, andattach billing records. The certifica-tion must also address the factors inRules 5:3-5, 5:42-9 (b), N.J.S.A.2A:34-23 and N.J.S.A. 2A:34-23 (a),in particular:

a. Whether his or her hourly rate isin line with other attorneys inthe same locality with a compa-rable level of experience.

b. The nature and length of the pro-fessional relationship with theclient.

c. The breadth and complexity ofthe issues.

d. Whether accepting this client’srepresentation has resulted inthe attorney turning down otherwork, and whether the client isaware of that.

e. The financial circumstances ofthe parties and their ability topay their own fees.

f. Any fees previously awarded.g. Fees previously paid to counselfor each party.

h. The results obtained.i. The extent to which counselfees have been incurred in theenforcement of discovery orother court orders. To properlyaddress this factor counsel mustgo through the file and pull allthe requests and follow up let-ters.

j. The reasonableness of the posi-tions of the parties.

Preparing such a document is atime-consuming and costly endeav-or. The Rules of Court do notrequire any less information in acertification of services seeking apendente lite counsel fee than one

where fees are sought at the com-pletion of a trial. The billing recordsmust be scrutinized and redacted,so that strategy is not disclosed. Achronological detail of timeexpended cannot possibly commu-nicate the degree to which discov-ery has been frustrated, or theefforts expended by counsel.Moreover, despite the fact that

one of the considerations in a coun-sel fee award is the amount of coun-sel fees paid by the adverse party,this is a rule that is honored in itsbreach. Typically, what the courtreceives in defense of the applica-tion is a razor-sharp dissection ofthe assertions in the certification ofservices, coupled with the assertionthat the business is experiencingdifficulties and income is reduced.If the court believes the businessowner’s tale of woe, the counsel feeapplication may be denied ‘withoutprejudice,’ even though all the fac-tors articulated in the statute andthe rule mandate an award. Theuneven playing field betweenspouses is thus perpetuated.If counsel fees are awarded, they

rarely bring the bill current. Often,the court takes funds from savingsand investments and distributesthem equally. Thus, not only doesthe business owner and his or herattorney maintain a decided advan-tage in the ability to pay fees, thenon-owner spouse has been forcedto pay his or her attorney to pre-pare a certification of servicesmerely to gain access to his or herown assets, over which the spousehas had unfettered access through-out the litigation. The effect on thedependent spouse is even more dra-conian when one considers that itis the liquid assets that are thesource of the dependent spouse’sequitable distribution for the busi-ness and other assets controlled bythe business owner, and that theyare being depleted to fund bothparties’ litigation expenses.While there may not be a com-

plete solution, the following proce-dure is proposed in any complextrack case where there is a closely

held business or professional prac-tice subject to equitable distribu-tion:

1. The first case managementorder shall have annexed to it acomprehensive list of docu-ments to be provided within afixed period of time. Thesewould include all bank state-ments and cancelled checks,credit card statements, financialstatements and loan applica-tions, retirement statements,personal and business taxreturns, receipts and disburse-ment ledgers in the form theyare maintained. Both partieswould be required to updatetheir documents on a quarterlybasis, until the trial is completeor the matter is settled. (A pro-posed form notice to producecan be obtained from theauthor.)

2. Additional documents may beadded at the conference. Ratherthan generate a completenotice to produce, the depen-dent spouse’s attorney needonly supply a list of additionaldocuments not part of thecourt notice. Documents thatthe attorneys agree are notapplicable can be stricken fromthe form notice at the confer-ence.

3. The burden would be on thebusiness ‘owner’ to make anyobjection and raise all prob-lems in obtaining the docu-ments in the ‘standard’ noticeto produce at the first casemanagement conference.Since the list attached to thecase management order is proforma, each party should beprepared at the conference toaddress problems and objec-tions.

4. If new documents are added atthe conference, there would bea 14-day period to raise anyobjection. If an objection is notraised within this period, it ispresumptively waived. A court,within its discretion, may hear


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late objections upon a showingof good cause. However, thecosts of these hearings wouldbe paid by the party raising theobjection.

5. Rather than be made availableto inspect at the locationwhere they are maintained inthe ordinary course of busi-ness, copies of the documentsin the pro forma notice to pro-duce would be provided toboth counsel and all forensicexperts. This may be done byscanning them and deliveringthem labeled and organized inan electronic format, or by pro-viding photocopies.

6. In cases that are particularlydocument intensive, a discov-ery fund would be established.Judges might also consider theappointment of a discoverymaster to address discovery dis-putes, propose orders andreport to the court at each casemanagement conference. Therewould be no defense to failureto provide documents in thenotice to produce that emanatefrom the case managementconferences. Failure of the busi-ness owner to provide the doc-uments would carry mandatorycounsel fee sanctions and anycosts incurred to obtain thedocuments not produced.

7. Included in the case manage-ment order, there would be arequirement that both partiesprovide current credit reportsfrom three credit-reportingagencies. The recommenda-tion would be a further require-ment that these be updatedbefore ESP/mediation, andagain before trial. These wouldreveal accounts that may havebeen omitted from the caseinformation statement.

8. The business would berequired to provide a Dunn andBradstreet report, if one exists,and copies of all documentssubmitted to lenders for theprior three years. These, too,would be updated before

ESP/mediation and trial.9. The case management order

would also include a provisionrestraining the disposition ofsavings and investmentaccounts without consent or acourt order.

10. Initially, the business ownermust obtain or finance the costsof obtaining documents not inhis or her immediate posses-sion. Thus, if the business ownerbelieves that he or she can ful-fill discovery obligations merelyby providing an authorization,he or she will bear the financialburden of that decision. If thereis a cost to obtaining those doc-uments and the business ownercannot or does not pay thatcost, there will be a rebuttablepresumption that the non-owner spouse will receive acredit against equitable distrib-ution for all reasonable costsincurred to obtain and repro-duce the documents.

11. A second case management con-ference occurs two weeks afterthe documents are due. If theyhave not been provided, andgood cause has not been shownfor the delay, monetary sanctionswould be mandatory. If the mate-rial is provided expeditiously,thereafter the court may consid-er vacating the sanctions. Sec-ond and third violations willcarry increasingly heavy sanc-tions and mandatory counsel feeawards. If cash is not available,such fees would be reduced tojudgment and payable out of thesupporting spouse’s assets.

12. The second case managementconference would provide anopportunity to add documentdemands, the need for whichhas been revealed by the firstset of documents provided.

13. Standard long form matrimonialinterrogatories would not bepermitted. Rather, the notice toproduce would be the key to thediscovery protocol. Requests foradmissions, limited interrogato-ries and depositions are used to

fill in the blanks. This addressesthe tactic often employed by thesupported spouse of delugingthe business owner with morethan 100 interrogatories withmultiple sub-parts and thetedious motions that inevitablyfollow.

14. At the first case managementconference and each subsequentcourt proceeding, each attorneywould be required to disclosehow much he or she has beenpaid, the source of funds, and theamount of any outstanding bill.Subject to a review of reason-ableness and need at final hear-ing, the court will make an awardof fees to achieve parity betweenthe parties without the necessityof a certification of services. Thiswould also occur at the pre-trialsettlement conference. If thecourt finds that one party wasrequired to accrue larger attor-neys fees to secure informationor enforce orders, additional feesshould be awarded on an ongo-ing basis, as the litigation pro-ceeds. If fee orders are ignored orthere is no present ability to pay,there will be a presumed creditagainst equitable distribution.

15. All fee awards and sanctionswould be reviewable at finalhearing with any adjustmentsbeing made via credits. The bur-den would be upon the partywho opposes the awardsand/or sanctions to prove thatthe court’s determination wasimproper. Frivolous requestsfor review, or those made inbad faith, would be subject tocounsel fee awards.

Unquestionably, this scenarioimposes substantial changes on theway we do business in the familypart. Yet, such changes are com-pletely justified if the goals ofevening the playing field, whileexpediting the process, are real.Invariably, the party with controlover the assets is also the keeper ofthe keys to the economic informa-tion. Statistics show that supported


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spouses and their children invari-ably suffer.

Women are at a particular economicdisadvantage in divorce because theytypically do not control family assetsat the end of a marriage. A study thatmeasured the economic conse-quences of divorce for women...found that standard of living drops 30percent for women and rises 10–15percent for men in the one year fol-lowing divorce.”15 The decline in stan-dard of living for women in upperincome families and those in longterm marriages (where spouses arepresumably older) are the greatest.16

Absent such reforms, supportedspouses will continue to be forcedto choose between a fair settlementand cutting one’s losses. We can dobetter. It is wholly appropriate andconsistent with the goals of ourstatutes that the tables be turnedand the burdens shifted. The changeis bold and drastic, but without itour goal of evening the playing fieldis nothing more than an empty plat-itude. �

ENDNOTES1. N.J. Ct. R. 5:3-5(b).2. N.J. Ct. R. 1:39.6(d).3. N.J. Ct. R. 5:5-4, Pressler, 2010

N.J, Court Rules (Gann).4. See Painter v. Painter, 65 N.J.

196 (1974).5. Id.6. See Finnegan v. Coli, et al., 59

N.J. Super. 353 (Law Div. 1960);Davis Acoustical Corp., v. Skul-nik, 131 N.J. Super. 87 (App.Div. 1974); Merns v. Merns, 185N.J. Super. 529, (Ch. Div. 1977);Gerson v. Gerson, 148 N.J.Super. 194 (Ch. Div. 1977).

7. R. 4:18-1 provides that theresponse must be served 35days after service of the requestor 50 days after service of thesummons and complaint.Rule 4:17-4(b) gives 60 days forresponse to Interrogatories.

8. Rule 4:17-4(d) permits referenceto a document in response to aninterrogatory where “the answer

to an interrogatory may bederived or ascertained from orrequires annexation or copies ofthe business records…or froman examination, audit or inspec-tion of such business records, orfrom a compilation, abstract orsummary based thereon, or fromelectronically stored informationand the burden of deriving orascertaining the answer is sub-stantially the same for the partyserving the interrogatory as forthe party served…” The respon-dent must specify in detail therecord from which the answercan be obtained. See Pressler, Id.at page 1506.

9. N.J. Ct. R. 5:5-1(a), Pressler, 2003N.J. Court Rules, (Gann) R.5:5-1(a) refers to R. 4:17; R. 5:5-1(c)refers to R. 4:11 et seq. and R.4:10-2(dX2) and R. 5:5-1(d)refers to R. 4:18-1, R. 4:18-2 andR.4:22-1. Pressler 2003 N.J.Court Rules, Comment R. 5:5-1(Gann).

10. N.J. Ct. R.4:23-5(a)(1), Pressler,2003 N.J. Court Rules, (Gann)(emphasis added). See Id.

11. See Id.12. N.J. Ct. R. 4:23-5(a)(2), Pressler,

2003 N.J. Court Rules, (Gann).The rule states that if an orderof dismissal or prejudice hasbeen entered pursuant to (a)(1)of this rule and such order hasnot been vacated, the partyseeking discovery may move foran order of dismissal or sup-pression with prejudice 90 daysafter the entry of original order.

13. The comment to Rule 4:23-1permits an aggrieved partywhose notice to produce hasnot been complied with to seekrelief either by filing a motionto compel or proceeding underthe two-step process in 4:23-5.Proceeding under 4:23-1(c)requires an award of counselfees “after the opportunity for ahearing…unless the court findsthat the opposition to themotion was substantially justi-fied or other circumstancesmake an award of expenses

unjust.” Similarly, if the motionto compel production is unsuc-cessful, the same standardapplies for an award of fees.

14. Pressler, supra at 1522-1523.15. Konzelman v. Konzelman, 158

N.J. 185,205 (l999) (O’Hearn, dis-senting) (citing Women inDivorce: Lawyers, Ethics, Fees &Fairness: A Study by the City ofNew York Department of Con-sumer Affairs at 8-9 (March1992)). See e.g. Peter Leehy, Note,The Child Support Standards Actand the New York Judiciary: For-tifying the 17 Percent Solution,56 Brook. L. Rev. 1299, 1305-1307 (1991); Carol Bruch, Devel-oping Standards for Child Sup-port Payments: A Critique of Cur-rent Practice, 16 U.C. Davis L.Rev. 49, 50-54 (1982) (discussingthe negative effects of divorce onchildren and custodial house-holds); Sally F. Goldfarb, ChildSupport Guidelines: A Model forFair Allocation of Child Care,Medical, and Ed1Lcationa/Expenses, 21 Fam. L.Q. 325, 349(1987); Marsha Garrison, ChildSupport and Children’s Poverty,28 Fam. L.Q. 475 (1994). See alsoPascale v. Pascale, 660 A.2d 485,492-93 (N.J. 1995) (citingSuzanne Bianchi and EdithMcArthur, U.S. Bureau of the Cen-sus, Family Disruption and Eco-nomic Hardship, The Short-runPicture for Children 1-2 (1991);U.S. Bureau of the Census, ChildSupport for Custodial Mothersand Fathers 2(1995)).

16. A. Stewart and C. Brentano,(2006) Divorce Causes andConsequences (p 98) NewHaven: Yale University Press.G.J. Duncan and S.D. Hoffman(1985) Economic Conse-quences of Marital Instability.In M. David and T. Smeeding(eds.) Horizontal EquityUncertainty and EconomicWellbeing (pp.427–467) Chica-go: University of Chicago Press.

Bonnie Reiss is a partner atParas Apy & Reiss in Red Bank.


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