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By Charles F. Vuotto, Jr.
Matrimonial litigants who have minor children are required to attend a Parents’ Education Program promulgated under N.J.S.A. 2A:34-12.3 to assist and advise divorcing parents on issues concerning divorce, separation and custody. After pleadings are filed, the parties will be automatically scheduled to attend this program when custody, parenting time or child support is plead as an issue in the pleadings filed by either party. The purpose of the program is to encourage cooperation between the parties and to assist parents in resolving issue, which may arise during the divorce or separation process. The program is designed to educate parties as follows:
Without question, the stated goals of the program are encouraging and obtainable. In a divorce situation, it is critical that parties understand the legal process, the cost involved, and the need to approach their disputes in a mature, reasonable and civil fashion toward the end of resolution by agreement rather than litigation. Clearly, the ultimate goal is to ensure that the best interests of the children are protected.
However, it has come to this author’s attention that while this program is well intended, there are certain examples of how the execution of the program is providing a negative connotation toward the legal process, the judiciary and counsel.
Without identifying a county, presenter or any other identifying information, this author has been informed by a litigant who was present that certain program presenters have attacked attorneys as a group. In one presentation where the overall theme was to settle as much out of court as possible, the presenter warned against making the error of bringing a case to court thinking you will “do better” than you would if you settle with your spouse. One could argue that there is nothing much problematic with this message. However, the presenter went on to use a very well-known and publicized divorce case as an example of what not to do. The presenter suggested that both parties in that well-publicized case wasted a lot of money pursuing things that they thought they were entitled to, when in fact, the arguments that they were making had no legal basis. It was suggested that not only should the litigants have known that their arguments were not tenable and their goals not obtainable, but that their counsel were also well aware that their respective arguments and goals were unrealistic. It was suggested that had the parties in this well-known case been encouraged to mediate rather than litigate, they would have saved significant money and perhaps been able to preserve their relationship. The presenter emphasized that this well-known case was complicated and prolonged by the attorneys involved and the unreasonable positions taken by the parties.
The litigant who reported this to this author indicated her impression that there was “quite a bit of shade” thrown on attorneys by the presenters. One comment that this litigant remembers was the following statement, “the people that benefit most from extended conflicts are attorneys” and “when conflict is resolved the attorneys stop being paid.” I think the message that this particular presenter was trying to send was quite clear and an insult to the vast majority of matrimonial attorneys in this state.
In addition to the foregoing, the litigant who reported on the contents of the Parents’ Education Program that she attended indicated that the presenter stated “attorneys are happy to fight for whatever you think you deserve, but the fact of the matter is that an attorney knows what the outcome will be from mediation or litigation 98% of the time, and it serves their financial interest to fight on the client’s behalf, even though they know that the outcome will not be what the client wants”. The litigant went on to give another example provided by this particular presenter of a dispute regarding some child-related expense and the ensuing litigation between the parties. The presented made the comment that the attorneys could absolutely have predicted the outcome and therefore the only people in that scenario that walked away better off were the attorneys’ pockets. The litigant reporting on this Parents’ Education Program indicated that there were many times that in encouraging people to settle issues outside of court and mediation, they referred to attorneys as the only real beneficiaries of the divorce conflict. This litigant walked away from the Parents’ Education Program with a general feeling of not trusting attorneys.
It is certainly possible that this litigant who reported these things to the undersigned could have been mistaken. The litigant could have misperceived or misconstrued what was said. Alternatively, the reporting may be accurate, and this may be an aberration of this particular county or even this particular program presenter.
Unfortunately, the above is not the only concerning example of this negativity. This author spoke to several colleagues from various areas of the state and was advised of similar troubling presentations. In fact, the problem appears to go beyond criticism of attorney to other experts. In one such example, a colleague reported that her client was at a Parenting Education Program and was told by the judge who was speaking that the worst thing a litigant could do was subject their children to a child custody evaluation. The judge went on to tell the litigants that this was very damaging to the children and the parties should settle custody and parenting time between themselves. The lecturer gave an example of a horrific, but highly unusual trial, where the parties depleted their assets arguing about custody. My colleague’s case cried out for an evaluation, but due to the judge’s cautionary talk, her client refused to have a much-needed custody evaluation. It did not appear to the colleague that her client misconstrued anything.
If the reports are accurate, and this sort of message is being communicated to litigants on a repeated basis, it must stop. It is simply wrong. Although there are certainly examples of over-litigious attorneys who churn files and fail to attempt to work toward a fair and appropriate resolution, it is this author’s experience that such attorneys are the exception and not the rule in our practice. The vast majority of attorneys do try to resolve their cases in a fair and reasonable fashion, whether by direct negotiation, mediation, arbitration or use of some other form of Alternative Dispute Resolution (“ADR”). Again, if these reports are correct, it is absolutely outrageous that a court-sponsored program would bash attorneys in this fashion. It may be necessary that there be some sort of review of the curriculum included in the Parents’ Education Program and some sort of vetting of the presenters. To my knowledge, the Family Law Section of the New Jersey State Bar Association has never been involved in this aspect of the matrimonial dissolution process. It may be time for the Family Law Section to become involved in this process. As such, this issue is being considered by the Family Law Section Executive Committee. If you hear of other such negative examples, this author encourages you to come forward and speak up for the benefit of preserving the good that this program was intended to provide to the matrimonial litigants of this state.
The author thanks Sheryl J. Seiden, Esq. for her contributions to this column. Ms. Seiden is the founding partner of Seiden Family Law, LLC in Cranford, New Jersey and the current Chair of the Family Law Section of the NJSBA.