New Family Law Rules

   On January 21, 1999, the Supreme Court of the State of New Jersey amended the New Jersey Court Rules applicable to matrimonial practice, effective April 5, 1999.

The changes were recommended by the Special Committee on Matrimonial Litigation, which had been organized by the court in April, 1996. In part, the committee was organized because of a 1993 recommendation by the New Jersey Ethics Commission for the creation of a special committee to "review the entire practice of matrimonial law, with particular emphasis on fee practices and other related issues."

The committee met many times and held four public hearings throughout the state. During these hearings, the committee heard and considered testimony from various interested parties. In February, 1998, the Committee submitted 54 specific recommendations to the Court. Subsequently, the report was published and comments were solicited. After the comment period, the Court considered each of the 54 recommendations, and took action with respect to each.
 
In enacting the "New Rules" the Court noted that in family actions, justice is often delayed, and that streamlining procedures or devoting additional resources to the task could improve the system. Within the present budgetary restraints, the amendment of the rules is designed to bring about such a change, while providing service that ensures equal access to a fair system of justice without excess cost.

A brief synopsis of the "New Rules" appears below:

RULES WHICH EFFECT THE ATTORNEY/CLIENT RELATIONSHIP

•   STATEMENT OF CLIENT RIGHTS AND RESPONSIBILITIES [R. 5:3-5]

  A statement listing client's rights and responsibilities must be appended to every retainer agreement in a family action. The Client must be given a copy of this Statement at the time he or she enters into a contractual relationship with the attorney.

   

• RETAINER AGREEMENTS MUST HAVE CERTAIN PROVISIONS [R. 5:3-5]

  All matrimonial retainer agreements must have the following nine elements

   

  1. Description of the legal services to be provided
  2. Specific statement of any services intended not to be covered by the agreement.
  3. The method by which the fee will be computed.
  4. The amount of the initial deposit or retainer and how that retainer will be used.
  5. When bills are to be provided to clients (not less than once every 90 days, if services have been provided); when the client is to make payment; whether the client will be charged interest; and whether or not the initial retainer must be replenished.
  6. The name of the attorney having primary responsibility for the matter, and his or her hourly rate, as well as the same information as to any others who may also work on the matter. Whether and how often rate increases will be permitted.
  7. Expenses and disbursements for which the client will be responsible and how they will be paid.
  8. The effect of counsel fees awarded on application to the Court.
  9. A statement of the attorney's right to withdraw from the case if the client does not comply with the agreement.

• SECURITY INTEREST IN CLIENT'S PROPERTY [R. 5:3-5(a)]
  • Matrimonial attorneys are expressly prohibited from taking a security interest (ie. mortgage or other lien) in a client's property.

   

• LIQUIDATION OF PROPERTY [R. 5:3-5 (c)]

  Judges are specifically authorized to "direct the parties to sell, mortgage or otherwise encumber or pledge marital assets ...to permit both parties to fund the litigation."

   

  • This rule change is to level the playing field so that an economically disadvantaged spouse will have adequate to resources to retain counsel, and/or experts necessary to litigate against a spouse who has control over the marital assets.
  • After 18 months, this rule change will be reviewed to ascertain whether modifications are appropriate.

•  

• WITHDRAWAL FROM REPRESENTATION [R. 5:3-5(d); R. 1:11-2]
  • Judges are permitted to allow counsel to withdraw from representation if a client does not comply with the retainer agreement. The amendment also sets forth factors for the judge to consider, and the procedure to be followed in such cases.

   

• NON-REFUNDABLE RETAINERS [ R. 5:3-5 (b)]
  • Non-Refundable retainers are prohibited for matrimonial matters.

   

• INTEREST ON UNPAID COUNSEL FEES [ R. 5:3-5(b); R. 1:21-7(a)]
  • If interest is to be charged on delinquent fee accounts, the attorney must include in the retainer agreement, the amount of interest to be charged. In addition, no interest may be assessed sooner than 30 days after the client's receipt of a written statement.

   

• CONTINGENT FEES

  Contingent fees are not permitted in matrimonial matters, except for proceedings involving claims of tortious conduct of another (such as personal injury from violence, or damages for transmission of sexually transmitted diseases).

 
RULES WHICH EFFECT CASE MANAGEMENT

ADDITIONAL REMEDIES FOR VIOLATION OF ORDERS
  [R. 1:10-3; R. 5:3-5; R. 5:3-7]

• When a parent has been found to have violated an order respecting custody or parenting time the court may order (in addition to normal contempt remedies) one or more of the following:
  • "make up" time with the children
  • economic sanctions - including compensation for child care costs associated with a parent's failure to exercise parenting time
  • modification of transportation arrangements
  • requiring pick up and return at a designated public place
  • counseling for the children or parent(s) at the expense of the "violator"
  • temporary or permanent modification of the custodial arrangement
  • mandatory community service for the violator
  • incarceration
  • issuance of a warrant to be executed in the event of a subsequent violation
• When an order has been violated an alimony or child support order, court may order (in addition to normal contempt remedies) one or more of the following:
  • fixing the arrearages, and entering judgment which will accrue interest
  • requiring payment of the arrears on a periodic basis
  • suspension of a driver's license or occupational license
  • economic sanctions
  •  mandatory community service for the violator
  • incarceration
  • issuance of a warrant to be executed in the event of a subsequent violation.
• Judges are specifically authorized, where circumstances are appropriate to award counsel fees for applications to enforce litigant's rights.

   

• DIFFERENTIATED CASE MANAGEMENT [R. 5:1-4; R. 5:5-1]

   

  Matrimonial cases will be assigned to a four-track system so as to expedite cases that have few issues, and more closely monitor cases with complex issues or those involving issues of custody and visitation. Cases will be assigned to a "track" early on, and the track assignment will govern discovery and other time limits.

   

  • PRIORITY TRACK - will be for cases involving contested custody or parenting time (ie. visitation) issues. Discovery time limits are to be prescribed in the Case Management Order.
  • COMPLEX TRACK - will be for cases involving a larger than normal number of parties, number and type of claims and/or defenses, difficult legal or factual issues, or the anticipated complexity of discovery. As in the Priority Track, discovery time limits will be set in the Case Management Order.
  • EXPEDITED TRACK - this is for cases requiring minimal discovery, which appear to require minimal pretrial proceedings. Discovery for cases assigned to this track should be completed within 90 days from service of the original complaint.
  • STANDARD TRACK - is for any action not fitting into one of the above categories. Discovery for cases assigned to this track is to be completed within 120 days of service of the original complaint.

• CASE INFORMATION STATEMENTS [R. 5:5-2]
  • The time and required filing of a Case Information Statement ("CIS") will be strictly enforced, and the opposing party may move for dismissal for failure to timely file a CIS.

   

• CASE MANAGEMENT CONFERENCES [R. 5:5-6]
  • Case Management Conferences will now be mandatory for all divorce matters.

   

• CERTIFICATIONS [R. 5:5-4]
  • Page limits have been imposed for Certifications, as follows:
    • Initial certification in support of motion - 15 pages.
    • Certification in opposition to motion or in support of a cross-motion - 25 pages.
    • Reply certification in opposition to opposing pleadings - 10 pages.

     

• INSURANCE COVERAGE [R. 5:4-2 (f)]
  • An affidavit of insurance coverage, must accompany the first pleading of a party (ie. Complaint, Answer, or Appearance). The affidavit must specify all known life, health, automobile, and homeowners insurance coverage, whether any insurance coverage was cancelled within 90 days of the filing, and if so a description of the cancelled coverage. All insurance identified in the affidavit must be maintained, unless otherwise ordered by the court.

RULES WHICH IMPACT UPON CUSTODY OF CHILDREN

•   EXPERTS [R. 5:3-3; R. 1:40-5(c)]
  • Therapists who are currently or have in the past provided therapy to a family member are prohibited from serving as an evaluator in custody proceedings involving that family.
  • Mediators who have provided services to a family to resolve custody issues may not serve as a custody evaluator in the same case or regarding the same child.

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