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By: Charles F. Vuotto, Jr., Editor-in-Chief
Have you ever woken up on a day you were scheduled to put through an uncontested divorce and thought, “why is this even necessary?” If you have, you are certainly not alone. It has come to my attention that putting divorces through “on the papers” in lieu of an appearance is becoming more and more commonplace. After some research, I discovered this seemingly novel concept of permitting divorces to be granted solely on the papers has quite a history in New Jersey, which dates back thirty-five years to 1976.
In Manion v. Manion,[i] the trial court denied a motion to enter a final judgment by default in a divorce action based on N.J.S.A. 2A:34-2(d) (18 months separation) where said request was supported solely by affidavits. In Manion, the parties separated on September 1, 1974 and the complaint for divorce was filed on March 3, 1976.[ii] The defendant/husband was personally served with the summons and complaint on March 11, 1976 and default was entered on May 5, 1976.[iii] On June 25, 1976, plaintiff/wife filed a motion seeking summary judgment for the following: (a) dissolving the marriage; (b) incorporating a property settlement and support agreement entered into by the parties on April 12, 1976; and (c) permitting the wife to resume her maiden name.[iv] Since no answer or appearance had been filed, the court agreed to consider plaintiff/wife’s motion as one for the entry of final judgment by default based on only affidavits pursuant to Rule 4:43-2.[v] The trial judge found that while cases disposed of pursuant to Rule 4:43-2 routinely followed such a procedure, those cases were typically for a sum certain or some other “easily liquidatable claim” and determined that a judgment for divorce does not clearly fall under the rule and “appear[ed] to be a hybrid falling into some gray zone in between.”[vi] The Court reasoned that the State has a substantial interest in all divorce actions and “that every divorce proceeding be treated individually and specially with a view towards the parties[’] interest as well as the public interest.”[vii] The Court stated that it is the duty of the trial judge, even in uncontested matters, to ensure that the severance of a marriage is not granted “except where warranted under applicable statutes…”[viii] The Court believed that to accomplish its goal “as the public’s conscience and protector of state interests” it would be “beneficial, if not essential, that a court have the opportunity to hear the direct examination of the non-defaulting party and to have the party present and in a position to respond to any questions the court might desire to pose”.[ix] The Court felt that the public would not be served by “turning our matrimonial courts into divorce mills where boiler plate forms are inserted in one end and divorce judgments are catapulted out the other” and therefore denied plaintiff/wife’s motion.[x]
Twenty-one years later however, the Hon. William C. Todd, III, J.S.C. in Linbald v. Linbald came to a diametrically conflicting determination and held that a Final Judgment of Divorce could be entered based upon the entry of defendant’s default and submission of written documentation, without requiring the plaintiff to appear and offer oral testimony.[xi] In Linbald, the complaint filed on behalf of plaintiff requested dissolution of the marriage and the incorporation of a Property Settlement Agreement executed by the parties into the judgment of divorce.[xii] Default was entered against defendant and plaintiff’s counsel requested that the court enter judgment based upon the written materials submitted, without requiring a personal appearance of plaintiff. Relying on Rule 4:43-2(b), the court permitted same, finding that the court may enter judgment after the entry of defendant’s default, without holding a formal hearing.[xiii] The Court held that because there were no apparent disputes with respect to the facts necessary to sustain a cause of action for the dissolution of the parties’ marriage, that no oral testimony or formal hearing was necessary.[xiv] Acknowledging this issue had been previously addressed in Manion (and the outcome the exact opposite), the Judge in Linbald specifically noted the following:
Times have changed. For a variety of reasons, this court is satisfied it is
no longer essential to require litigants to appear personally, simply to present
the facts necessary to establish a cause of action for divorce. In a variety of circumstances it would seem appropriate to permit a litigant the option of
proceeding without a formal hearing, assuming appropriate proofs can be
submitted by way of certification, affidavit or other documentation.
For better or worse, divorce is now common in our society. The New Jersey
court system now handles approximately 55,000 divorce actions each year.
(see Superior Court Case Load Reference Guide, 1992-1996 compiled by the Administrative Office of the Courts). [xv] Given the volume of cases coming
before the court, it is reasonable to consider the costs involved in the scheduling
of hearings, both in terms of litigants’ time and resources, and the court’s own
resources. Requiring formal hearings can be costly and inconvenient. Of
necessity, there will be short delays as matters are scheduled, considering the
availability of the court, counsel and litigants. There will be occasional problems presented when one or more of the participants involved may not be able to
attend a particular hearing. On a regular basis, litigants will be required to take
time off from their employment or to adjust their personal schedules to be able
to attend a hearing. Some litigants may be required to travel substantial distances
and to incur substantial transportation expenses. Those individuals represented
by counsel will be required to incur attorneys fees. In many instances, those fees
may be substantial, given the individual litigant’s financial circumstances. Indeed,
some litigants may be forced to forego retaining counsel to assist them in handling divorce proceedings because of the fees incurred in attending such hearings. In
addition, it is likely that many litigants simply feel uncomfortable appearing in
court and would prefer to avoid that experience if possible.
In short, there are very real costs involved in scheduling formal hearings. It is appropriate to be sensitive to those costs, particularly in dealing with family matters. Matrimonial litigation continues to be the subject of substantial controversy and much public dissatisfaction. On a regular basis concern has been expressed by the Bar, members of the general public, the legislature and the courts with respect to the cost of matrimonial litigation. There are compelling reasons to attempt to reduce the cost and inconvenience involved in the handling of matrimonial litigation, as long as that can be done on terms which are consistent with the State’s interest in the matter and the court’s responsibilities. In that context, it is difficult to justify requiring litigants to appear for formal hearings after a default has been entered, simply to present the facts necessary to establish a cause of action for divorce. In most cases, the facts necessary to establish a cause of action for divorce can be established through the submission of a verified complaint or an appropriate affidavit or certification. In many cases, the facts necessary to establish a cause of action will be relatively simple. In some instances, litigants may be able to present detailed and extensive proofs by certification. In any event, the court can always require personal appearances in specific cases when the written proofs presented are deficient.[xvi]
Judge Todd stated that there should not be any concerns that the procedure contemplated would somehow encourage divorces, as there are still procedural requirements which must be followed and substantive facts which must be proven, before a divorce can be obtained.[xvii] The Judge was careful to note that this process “would only be available in uncontested matters, where a defendant has failed to respond to the plaintiff’s complaint, where default has been entered in accordance with our court rules, and where the facts necessary to justify the relief requested are easily confirmed through the submission of written documentation[xviii] and that formal hearing will need to be scheduled in any cases involving the service of a Notice for Equitable Distribution, Alimony, Child Support and Other Relief, pursuant to R. 5:5-2(e).”[xix] With an eye toward the future, the Court noted that more specific standards would be developed to implement this procedure to define the circumstances under which such applications would be considered a matter of course, noting that fairly detailed submissions would be required and the Court would continue to schedule formal hearings when necessary.
Following the Linbald case, this procedure became part of a pilot program in the Atlantic/Cape May vicinage and the Somerset/Warren/Hunterdon vicinage, resulting in mixed reviews. In its Final Report, the Supreme Court Special Committee on Matrimonial Litigation (“Special Committee”) recommended statewide adoption of the procedure, however noted that the Supreme Court Family Practice Committee (“Practice Committee”) opposed it, citing that “to permit the procedure would be to denigrate the public perception of the importance the judiciary attaches to the institution of marriage” and had the potential to “foster collusive divorces.”[xx] In the interest of compromise, however, the Supreme Court adopted the minority position of the Special Committee and permitted the procedure as an ongoing pilot program limited to the Atlantic/Cape May vicinage and the Somerset/Warren/Hunterdon vicinage, with the direction that the Practice Committee was to assess the pilot program and report back to the Supreme Court in its 1998-2000 report.
The issue was assigned to the General Procedures Subcommittee (“GPS”). The GPS sought insight from two family part judges who were administering the procedure in their respective counties and researching how other jurisdictions handled this issue. The GPS determined that based on the success of the program in the pilot vicinages, in addition to the existence of comparable procedures in other jurisdictions, the pilot should be expanded statewide. The GPS, however, specifically excluded cases involving property settlement agreements and limited the procedure to cases proceeding on default. This issue was then discussed at the January 11, 2000 Practice Committee meeting and a formal vote was held on whether to discontinue the practice in its entirety.[xxi] Due to 65% of the Practice Committee members voting yes, it was the Practice Committee’s recommendation that the practice be discontinued in its entirety.
On March 21, 2003, however, Judge Richard J. Williams, J.A.D. as the Administrative Director of the Courts, sent all Assignment Judges a memorandum, authorizing Hudson County to join Atlantic County and Somerset County in the pilot program permitting the use of default dissolutions without an appearance. Judge Williams advised that the approval for Hudson County was based upon the success in Atlantic County and Somerset County. He also specifically noted that the memorandum was sent to bring this procedure to the attention of other vicinages in the event other counties wanted to replicate the procedure. Shortly thereafter, with the approval of the Supreme Court, Middlesex County released a Notice to the Bar that it would also be permitting the entry of default judgments without personal appearance in certain dissolution proceedings effective July 1, 2003 and provided extremely detailed requirements to obtain same. [xxii]
While a few counties in New Jersey have implemented the concept of divorce “on the papers,”[xxiii] such a concept is still evolving in our state and raises many questions and concerns. The above history seems to only deal with situations where default has been entered. That however is inconsistent with my own personal experience, where recently a case I was handling proceeded “on the papers” where no default had been entered, both parties were represented and it was requested that the Marital Settlement Agreement be incorporated into the Final Judgment of Divorce. The concept that default is necessary is also inconsistent with the information received from the both the counties and colleagues alike, all of whom stated default is not necessary to utilize this procedure.
Unfortunately, there does not seem to be a uniform standard or if there is, it is not being implemented uniformly. That being said, as a practice tip, a typical packet that would be submitted to the court in support of a request for a divorce to be granted on the papers is as follows:
If the documents submitted are acceptable to the Judge, he or she will sign the Final Judgment of Divorce and the court will provide copies of same to the attorneys. As to the contents you should include in the certification of your client, all the standard information that you would typically solicit by way of voir dire during a standard uncontested hearing should be included. For example, the certification should include such provisions as, the parties’ intent to proceed on an uncontested basis without an appearance, facts which establish the cause of action, the party’s residence, the voluntariness of the agreement, their desire to have the agreement incorporated into the Final Judgment of Divorce, the party’s waiver of their right to a trial, their satisfaction with your services, and most importantly, their understanding of the agreement as fair and equitable and their intent to be bound by same.
While the benefits of such a procedure are quite obvious, such as decreased counsel fees, convenience to the litigants, preserving judicial resources and decreased court backlog (in addition to the other sage reasons set forth by Judge Todd in Linbald), are there any evident negatives? The only negatives that immediately come to mind are (1) the perception by the public of the court’s view of divorce; (2) those cases where the parties may require the symbolic closure of their relationship; (3) when you are faced with a difficult client opposing litigant and want the opportunity to have everything placed on the record, before the Judge, with the opportunity to cross-examine the opposing litigant if necessary; or (4) where the parties’ agreement contains a provision for rehabilitative or permanent alimony, thereby requiring the court to take testimony regarding same and make specific findings pursuant to N.J.S.A. 2A:34-23(b) and Carter v. Carter.[xxv]
There are, of course, those cases where a reviewing court has utilized the testimony of a litigant (as to the voluntariness or fairness of an agreement) to reject a subsequent attempt to overturn or modify the agreement in a legal malpractice setting.[xxvi]
It seems that the option to obtain the entry of a divorce “on the papers” is a slowly evolving procedure in our state. While it may not be the desirable procedure for every divorce case, it is certainly good to know that this simple and straightforward procedure is available. Judge Todd’s well-reasoned decision supports the wisdom of this approach in the appropriate situation. The procedure should be implemented statewide, not require the entry of default where the parties have entered into a comprehensive agreement and be dictated by clear and uniform rules.
**Special thanks to Harry T. Cassidy, Assistant Director of the Family Practice Division, and Lauren E. Koster, Esq., associate with Tonneman, Vuotto & Enis, LLC, for their assistance with this column.
[i] 143 N.J. Super. 499 (Ch. Div. 1976); abrogated by Linblad v. Linblad, 304 N.J. Super. 50 (Ch. Div. 1997).
[ii] Id. at 500.
[iii] Id.
[iv] Id.
[v] During oral argument, counsel for the plaintiff/wife conceded that the a motion for summary judgment may have not been procedurally proper as summary judgment is typically reserved wherein both a complaint and an answer or appearance has been filed and the moving party is asserting that they are entitled to a judgment as a matter of law based on the fact that no genuine issues of material fact exist. Manion, 143 N.J. Super. at 501.
[vi] Id.
[vii] Manion, supra at 502.
[viii] Id.
[ix] Id. at 503.
[x] Id.
[xi] 304 N.J. Super. 50 (Ch. Div. 1997).
[xii] Id. at 52.
[xiii] Id. at 53.
[xiv] Id.
[xv] This figure has actually dropped to about 30,000 for 2010 according to Mr. Cassidy: The Management Report lists 30,534 new cases, 30,036 were new dissolution filings, the balance of about 500 were reopened dismissals, transfers from other counties, and reactivated cases. Not all of the new cases were divorces, as some may have been divorces from bed & board or dissolution of civil unions/domestic partnerships. Nevertheless, he feels that it is safe to say that about 99% were divorces. These numbers have been very steady for the last decade. It should also be noted that the FM figures cited by Judge Todd included the post judgment actions.
[xvi] Linbald, supra, at 54-55. The Judge in Linbald did note however, that there are some benefits from a formal hearing which requires a personal appearance such as confirming the importance and seriousness of dissolving a marriage.
[xvii] Id. at 56.
[xviii] The court notes other examples where our Court system has been attempted to curtail the cost of litigation, such as permitting motions to be heard on the papers or telephonically rather than requiring an appearance, as well allowing the reports of court appointed experts to be admitted on motion pursuant to Rule 5:3-3.
[xix] Linbald, supra at 56-57.
[xx] Discussion of Recommendation #32, page 47.
[xxi] The breakdown of the votes is as follows: 17 yes votes, 7 no votes and 2 abstentions.
[xxii] The Notice listed that the procedure would be available for the following cases: (1) where the relief requested is limited to the dissolution of the marriage; (2) where the relief is limited to the dissolution of the marriage and the incorporation in the Judgment of Divorce of a written Property Settlement Agreement executed by both parties resolving all issues; (3) when the relief requested is the dissolution of the marriage the continuation of final Orders entered in other proceedings resolving all issues of custody, visitation and support and where no other issues are presented; and (4) in any circumstances noted above, relief may also be requested, by either party to permit that person to resume/assume the use of a prior or other name, pursuant to N.J.S.A. 2A:34-21 (this Notice can be found at http://www.judiciary.state.nj.us/notices/n030610a.pdf).
[xxiii] Attempts were made to contact all counties in New Jersey. From the information received, the following counties affirmatively stated that such a procedure is permitted: Atlantic County, Hudson County (see http://www.judiciary.state.nj.us/notices/2005/n050307a.htm), Hunterdon County, Mercer County, Middlesex County, Somerset County and Warren County. The following counties stated that the procedure was not permitted: Bergen County, Burlington County, Cumberland County, Essex County, Monmouth County, Salem County and Sussex County. After reaching out to the Family Law Section of the New Jersey State Bar Association via the Family Law Listserve, a response was received from one attorney indicating that this procedure is permitted in all counties (except Burlington County) on a judge-by-judge basis, specifically noting Essex County and Morris County. Therefore, it seems that there is a certain lack of clarity as to which counties permit this and which do not.
[xxiv] A checklist provided to the law clerks in Atlantic County listing all requirements has been set forth as Appendix “A” to this column.
[xxv] 318 N.J. Super. 34 (App. Div. 1999).
[xxvi] Newell v. Hudson, 376 N.J. Super. 29 (2005); Puder v. Buechel, 183 N.J. 428 (2005).