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March 20, 2023

A Byline from an Experienced New Jersey Matrimonial Attorney Recollections of the Covid-era and musings of how it may affect the future of family law practice in New Jersey – or “to be Remote” or “not to be” in New Jersey Family Court

 Now that Covid is somewhat behind us (for now, at least), the family law Courts in New Jersey are trying to make adjustments.

During Covid, the family law courts and divorce practice in general, in New Jersey, changed dramatically.  I recall being in Middlesex County Family Court at the end of March of 2020, when we were all trying to comprehend what might happen next and whether things would completely shut down.  Then it happened.  And, things just stopped.  But, very quickly, the Judges I know tried to grapple with the issue and we initially did court telephone conferences for everything, zoom wasn’t quite the be all end all that it is today.  Thereafter zoom did take hold and we all began using it along with Microsoft meetings (never as efficient, although Hudson County Courts and some Passaic County courts often insisted on it).

Thereafter, in almost two and half years of a very busy, full-time matrimonial practice in the State of New Jersey, I might have had five in-person appearances.  And, it worked, reasonably well.  Despite what the naysayers say.  There were some cases that both sides seemed not to want to settle unless forced to be in-person, but, by and large, the cases moved along and we got them settled. 

The Courts had problems along the way, no question.  Some cases seemed to go missing or were not timely filed or never seemed to get a case management conference on calendar with a Judge, but usually, that was the Judge’s calendar at issue or Court staff retention issues.  The Courts did seem to have serious problems with staff, having lost some to retirement during Covid, and not being able to hire new staff along the way.  This seemed to delay the caseload tremendously at times.  As has been well-reported, some counties in New Jersey have such a shortage of Judges that trials are being scheduled three years out. 

And, then, the transition back from Covid seemed to start in earnest about November or December of 2022.  There were prior fits and starts, when Covid ebbed and flowed, but since December 2022, there seems to be a remarkable turnaround in terms of the outlook of the Courts and it seems society in general.  We are trying to come back and we are finding out the new normal.

So, what is the new normal in the post-Covid world for the family courts of New Jersey?  Everyone seems to want it to be something else. 

Some Judges seem to want it to go completely back to the old times, when attorneys and their clients would be have to appear at all times in front of the court in-person.  Attorneys that have gotten used to the efficiencies in their practice with “Covid-style” practice decry being pushed back to the old ways.  It is my understanding that Early Settlement Panelists in Essex County, when it was requested that they come in-person by the Court, requested that they be allowed to continue to appear remotely.  They got their way it seems, as serving as a panelist is a pro-bono act in and of itself, and driving in and parking in Newark on a weekday morning is not the easiest of things.

It must be asked, what have we learned from Covid as regards the family courts, what works better with the Covid-ways and what does not? 

By and large, this attorney would argue that, but for, Intensive Settlement Conferences and Trials, most things are better handled “remotely.” 

In other words, most things, except for those cases at the end of their life, when the parties have showed their intransigence or the facts are so difficult they require a Judge’s intervention, are best handled remotely.  The efficiencies alone of not having to drive to a courthouse during rush hour and have to then park and then wait for the Judge to be free to see the attorneys and/or parties argues for “remote unless necessary.”  The cost to clients alone is hard to justify.

I had a full-fledged divorce trial with many exhibits during Covid that was completely remote and, quite frankly, in many ways it was easier because you could just share your exhibits with everyone once you had lined them up.  However, there was a witness that had a face covering on and eliciting her testimony would have been better in-person so that the Court could adequately judge credibility. 

I find most Judges have no problem with telephone conferences with or without zoom instead of in-person appearances for short case management conferences.  Although, some Judges seem to favor going back to in-person appearances for even short case management conferences with the attorney’s only – as I said, the cost to our client’s alone argues for this practice not coming back anytime soon.   However, attorneys are only in a position to gently suggest their preference.

I do seem to have at least one in-person a week or so at this time (from five in 2.5 years during Covid), we will see where that is a couple more months from now.  I do think that parties are motivated to settle their cases when they know they will have to appear in person, and it does push them to do so, so that is a good thing.

It is also a good thing that the Court Rules were amended during Covid such that most Judges now takes cases on the papers without requiring a hearing when both parties have signed off on Certifications allowing them to do so.  I have heard the Judges say this is a tremendous time saver for them and the attorneys are happy to do this as well, a time saver for all and less cost for our clients.  It only makes sense.

Judges were generally and remarkably very patient with everyone as well.  I remember distinctly how all the Judges would make sure to say, “stay safe” or “stay well.”   I also had many a remote hearing where my client struggled with their audio and every single Judge in that situation was extremely understanding, even guiding my client technologically, in order for the hearing to proceed.  And, it always, ultimately, worked out.  The Judge got the case off their docket and the client obtained their divorce.  Mission accomplished for all!

So, in sum, Covid taught us all a lot, including those of us practicing matrimonial law in the State of New Jersey.  It was an incredible learning process for everyone involved and everyone really tried their best it seemed to navigate the difficulties we were all having,   

It is my hope that we all take the good things we learned during Covid and continue to apply them to make the practice of family law more helpful and efficient for our clients.

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