DIVORCE – DISPUTE RESOLUTION ALTERNATIVES TO CONVENTIONAL LITIGATION – DESCRIPTIVE MATERIAL REQUIRED BY RULE 5:4-2(h); CERTIFICATION FORMS

DIVORCE – DISPUTE RESOLUTION ALTERNATIVES TO CONVENTIONAL LITIGATION

– DESCRIPTIVE MATERIAL REQUIRED BY RULE 5:4-2(h); CERTIFICATION FORMS

As part of the July 27 rule amendments that went into effect September 1, the

Supreme Court adopted a new paragraph in Rule 5:4-2 (“Complaint”) that requires the

first pleading of each party in a divorce action to include an affidavit or certification “that

the litigant has been informed of the availability of complementary dispute resolution

(‘CDR’) alternatives to conventional litigation, including but not limited to mediation or

arbitration, and that the litigant has received descriptive literature regarding such CDR

alternatives.” Rule 5:4-2(h) (“Affidavit or Certification of Notification of Complementary

Dispute Resolution Alternatives”). The Court recently adopted a clarifying amendment

to that paragraph, changing “descriptive literature” to “descriptive material.”

In a September 18 Notice to the Bar, I advised that the “descriptive material” was

still in the process of being developed by the Committee on Complementary Dispute

Resolution. The Committee completed its work and submitted the proposed text and

the accompanying certification forms. The Court at its October 10 Administrative

Conference approved the “descriptive material” text and the certification forms, subject

to some final editing.

That final editing having been made, attached as approved by the Supreme

Court is the “descriptive material” on dispute resolution alternatives to conventional

divorce litigation, as referenced in Rule 5:4-2(h). Also attached are the two approved

certification forms relating to the descriptive literature, one for use by self-represented

matrimonial litigants, the other by those litigants represented by counsel. The

descriptive material and certification forms should be used effective immediately.

The descriptive material and certification forms also will be published and posted

by a Notice to the Bar. Questions may be directed to Assistant Director Harry Cassidy

at 609-984-4228.

Note: The adoption of Rule 5:4-2(h) and the promulgation of the attached

descriptive material is in no way intended to indicate any change in the Court’s policy,

grounded in statutes and court rules, against mediation in any matter in which a

temporary or final restraining order has been entered pursuant to the Prevention of

Domestic Violence Act.

/s/ Philip S. Carchman

Philip S. Carchman, J.A.D.

Acting Administrative Director of the Courts

Dated: December 4, 2006

DIVORCE – DISPUTE RESOLUTION ALTERNATIVES

TO CONVENTIONAL LITIGATION*

[Text Promulgated 12/04/06 as Approved by the Supreme Court]

Resolving issues concerning your divorce can be costly and difficult. While only a judge

can actually grant a divorce, division of your property and your debts, alimony, child support,

custody and parenting time are some of the other issues that may need to be resolved. A judge

can decide all issues at trial. However, there are other ways to resolve many of the issues in your

divorce. These alternate dispute resolution methods offer greater privacy than resolving the

issues in a public trial. They also may be faster and less expensive, and may reduce the level of

conflict between you and your spouse during your divorce. You are encouraged to discuss

alternative dispute resolution with your lawyer to decide whether these alternate methods may

help you and your spouse resolve as many of the issues relating to your divorce as possible

before the matter is presented to the judge.

What follows are short descriptions of various forms of alternative dispute resolution that

may be used in divorce cases.

MEDIATION**

Mediation is a means of resolving differences with the help of a trained, impartial third

party. The parties, with or without lawyers, are brought together by the mediator in a neutral

*

This constitutes the “descriptive material” referenced in Rule 5:4-2(h) that each divorce litigant

must receive and certify as having received (using the attached certification forms).

**

Note: The adoption of Rule 5:4-2(h) and the promulgation of this descriptive material is in no

way intended to indicate any change in the Court’s policy, grounded in statutes and court rules,

against mediation in any matter in which a temporary or final restraining order has been entered

pursuant to the Prevention of Domestic Violence Act.

1

setting. A mediator does not represent either side and does not offer legal advice. Parties are

encouraged to retain an attorney to advise them of their rights during the mediation process. The

mediator helps the parties identify the issues, gather the information they need to make informed

decisions, and communicate so that they can find a solution agreeable to both. Mediation is

designed to facilitate settlements in an informal, non-adversarial manner. The court maintains a

roster of approved mediators or you can use private mediation services. The judge would still

make the final determination as to whether to grant the divorce.

ARBITRATION

In an arbitration proceeding, an impartial third party decides issues in a case. The parties

select the arbitrator and agree on which issues the arbitrator will decide. The parties also agree in

advance whether the arbitrator’s decisions will be binding on them or instead treated merely as a

recommendation. While an arbitrator may decide issues within a divorce case, the judge would

still make the final determination as to whether to grant the divorce.

USE OF PROFESSIONALS

Parties in a divorce may also seek the assistance of other skilled professionals to help

resolve issues in a case, such as attorneys, accountants or other financial professionals, and

various types of mental health professionals (e.g., psychiatrists, psychologists, social workers,

therapists). These professionals may help the parties resolve all of the issues or just specific

portions of the case. As with mediation and arbitration, parties making use of these

professionals to resolve issues in the divorce are encouraged to consult their attorney for advice

2

throughout this process. While this approach may resolve some issues in the case, the judge

would still need to make the final decision to grant the divorce.

COMBINATIONS OF ALTERNATIVES

Depending on your circumstances, it may be helpful for you to use a combination of

mediation, arbitration, and skilled professionals to resolve issues in your divorce.

CONCLUSION

Just as every marriage is unique, every divorce is unique as well. The specific

circumstances of your divorce determine what method or methods of dispute resolution are best

suited to resolve issues in your divorce. You are encouraged to ask your attorney about these

alternative dispute resolution methods to resolve issues relating to your divorce.

Using these alternative dispute resolution methods allows you to participate in the

decision on those issues, rather than leaving all of the issues to the judge to decide. And

presenting the judge with a case in which the only decision remaining is whether to grant the

divorce will permit that decision to be made more expeditiously. While the judge must be the

one to decide whether to grant the divorce, your role in deciding some or all of the other issues

can be enhanced through these alternative dispute resolution methods.

3

[Rule 5:4-2(h) Certification Forms Promulgated 12/04/06 as Approved by the Supreme Court]

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION, FAMILY PART

Plaintiff

COUNTY

DOCKET NO. FM-

vs.

Defendant

CIVIL ACTION

RULE 5:4-2(h) CERTIFICATION BY

SELF-REPRESENTED LITIGANT

__________________________, of full age, hereby certifies as follows:

1. I am the Plaintiff Defendant in the above captioned matter.

2. I make this Certification pursuant to New Jersey Court Rule 5:4-2(h).

3. I have read the document entitled “Divorce -- Dispute Resolution Alternatives to

Conventional Litigation”.

4. I thus have been informed as to the availability of complementary dispute

resolution alternatives to conventional litigation.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

Dated:

Published 12/04/2006, CN 10889-English page 1 of 1

[Rule 5:4-2(h) Certification Forms Promulgated 12/04/06 as Approved by the Supreme Court]

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION, FAMILY PART

Plaintiff

COUNTY

DOCKET NO. FM-

vs.

Defendant

CIVIL ACTION

RULE 5:4-2(h) CERTIFICATION BY

ATTORNEY AND CLIENT

_____________________________, being of full age, hereby certifies as follows:

1. I am the attorney for the Plaintiff Defendant in the above captioned

matter.

2. I make this Certification pursuant to New Jersey Court Rule 5:4-2(h).

3. I have provided my client with a copy of the document entitled “Divorce --

Dispute Resolution Alternatives to Conventional Litigation”.

4. I have discussed with my client the complementary dispute resolution alternatives

to litigation contained in that document.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

Dated:

**************************************************************************

_____________________________, being of full age, hereby certifies as follows:

1. I am the Plaintiff Defendant in the above captioned matter and am

represented in this divorce matter by _____________________________.

Published 12/04/2006, CN 10890-English page 1 of 2

2. I make this Certification pursuant to New Jersey Court Rule 5:4-2(h).

3. I have read the document entitled “Divorce – Dispute Resolution Alternatives to

Conventional Litigation.”

4. I thus have been informed as to the availability of complementary dispute

resolution alternatives to litigation.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

Dated: