FURTHER JUDICIAL COMMENTS FROM THE BENCH
THE COURT: Early Settlement Panel day is a day of decision making. It’s a tough
day. It’s a day when this courtroom is genuinely filled with people,
none of whom want to be here. It’s a day when this courtroom is
filled with people who never expected to be here.
And so you bring with you all of these impossible negatives that keep weighing
you down the longer your divorce case continues to pend. And it’s
sad. Because if we’ve learned anything in the Family Court, we’ve
learned this. That everyone who comes here is hurting. Everyone who comes
here feels the anguish, frustration, pain, guilt, hostility dealing with
rejection. All of those terrible, terrible things.
And when you think about it, you begin to wonder how can a relationship
that started with such love, with such brightness, with such happiness,
how it can evolve to this and it did.
In Monmouth County alone, there are 2,000 new divorce cases instituted.
The average length of the marriage in this country, now, is slightly under
seven years. If those statistics don’t bother you, I will tell you
they bother me.
So, when you come before a Judge, you come bringing with you this terrible,
terrible emotional baggage, that all of us carry. But, you really have
to ask yourselves, what it is that I expect to be able to accomplish here
and I guess the best way to answer that is to tell you what you won’t
accomplish. If anyone is here thinking that today is an opportunity to
get even, to get revenge, wrong place, wrong Judge, wrong time.
If everyone-- if anyone is here believing that today is the day you’re
going to win, no one’s ever won a matrimonial case. If we do what
we’re supposed to do, maybe no one has to lose, but no one’s
going to win.
So, what do we really do here? We try to treat everyone here with some
understanding, some compassion, dignity and we try to resolve problems
for whatever reason you are unable to resolve yourselves. That’s
what we do. We allocate and divide finite resources.
We attempt to give you some sort of a blueprint that will allow you to
get on with your lives, because you will. You will get on with your lives.
And we try to get you out of here, to get you out of this system, as quickly
as we possibly can.
This is a very imperfect system in which we all deal. And my greatest fear,
I guess if you look at the cases that are being tried now, my fears are
realized. My fears are that you, in fact, will be ground up by the system.
We’re trying cases now that are more than three years old. Three
years of living hell, for each and every one of you. It can’t go on.
So, how do we stop it? I can’t do it alone. The system can’t
do it alone. Your attorneys can’t do it alone, nor can you. But
collectively, we can. What we can’t do is make everything better.
We can’t pat anybody on the head today and send you out the door
happy and skipping and singing, oh, what a wonderful day today was. That’s
not going to happen.
What we can do and what we will do is go through the facts in your case,
an analyst will make recommendations as to how your case can and should
be resolved. And if that’s not successful, then you or your attorneys,
at least, will speak to me. I’ll try to refine those recommendations
and hopefully, a goodly number of the matters that are here before us
today will end today. Because a case that is settled today, will be put
on the record and it will be over.
How do we do it? Well, the average case that appears before a Judge, from
the first time someone with competence looks at the arithmetic in the
file, until the day the face finally ends, it is the rare case indeed
that has a variance of more than ten percent. That’s all, ten percent.
So, the question you’re going to have to ask yourself, several times
today, is that last bite of the apple really worth it? What is it that
we’re really fighting about?
There is no magic correct number that I can leap to my feet and say, aha,
the Jones case, this is the precise number that should resolve all disputes.
It doesn’t work that way. Rather, there is a range, parameters of
what is fair and reasonable. What goes into that range? The income and
the income potential of the parties, legitimate living expenses, special
needs of the parties, assets that may be available and we’re very
good at doing those things, if you work with us.
If you don’t, sooner or later your matter will be over. And these
are really the two choices. Either you make the decisions, with the advice
and counsel of your attorneys and panelists or sooner or later, unfortunately
later, a stranger who happens to be wearing a black robe, will tell you
how you’re going to live the rest of your lives. Those are the options.
It’s not going to go away. The matter is going to come to an end.
The way you make it come to an end correctly, is perhaps for the first
time since this horror started, you look at the facts, but you look at
them for the first time, not through your own eyes, but from the perspective
of your spouse. How is he or she really reacting to this? What are her
or his real needs, as well? Not to get even. Not to draw blood. Not to
point fingers. Do something that is fair and reasonable with an aim of
What I do on ESP day is try to get away from the realm of lectures. You
didn’t come here to hear a lecture. Is try to tell people who are
here about some cases that we’ve had and of course, every case that
we have has its own story to tell. Some are more traumatic than others.
And there is one attorney sitting in the room who has been very tired of
hearing me recite the story, but I don’t think he listens anymore,
so it’s okay. Because he knows it better than I do now. You don’t
have to listen, its okay.
Mr. and Mrs. Jones have two kids, two cars and a house and a one-man business.
Mr. Jones said he made $60,000 a year and Mrs. Jones did not believe him.
He couldn’t have lived on $60,000 a year. So, she hired an accountant,
who went over the books and records and the perks and the add backs and
all that and said he makes $70,000 a year.
Mrs. Jones wasn’t satisfied with that number because she knew it
was more than that. So, we had a trial. An the husband got on the stand
and he swore to tell the truth and all that other good stuff and he said,
I make $60,000 a year and the accountant got on the stand and said, no,
I’ve gone over the books and he makes $70,000 a year. Mrs. Jones
got on the stand and she said, he makes $200,000 a year and that was her
perception of reality.
Mr. Jones’ attorney asked her one question. The question was, on
what do you base that statement and she said, I have my sources, but I
cannot reveal them. That’s not proof. That doesn’t tell me
anything. So, my decision was that I made an award as it turned out, that
award was slightly less than what the husband had offered in settlement.
Not as punishment, but that’s what the facts of the case warranted.
The ultimate irony, for that wonderful decision I was able to make, Mr.
and Mrs. Jones spent over one and one half times annual gross income on
legal fees, accounting fees, private detective fees. They spent in excess
of $100,000. They spent their children’s college education. For
what? To attempt to demonstrate something to me that was not provable?
Absurd, but real.
So, you have to make decisions. And the decision that you make today, are
decisions that are going to be based upon what it is that you’re
going to be able to prove to me about your case, that I probably don’t
know now. And if it’s something dramatic, fine. But, if it’s
not, then listen to the recommendations that are made today, because they
probably will not vary all that much.
The alternative, join the lawyer of the month club. Every month, pick out
your favorite lawyer, write out another check, you make it to the lawyer
and the case will go on for another month. I mean, that is good. I used
to be a matrimonial attorney and there I nothing wrong with that.
I don’t mean to denigrate the members of the matrimonial bar. To
the contrary. They are the hardest working, most giving members of the
legal profession. Not only do they come here to be your legal advocate,
they also come here, in many cases, as your Consigliere, as your friend,
as your advisor. They understand and empathize with your feelings, sometimes
too much. Sometimes to a point where I find they almost have to divorce
the attorneys before I can begin to focus in on the problems and the litigants
and they earn their money.
But, they are not here to make to your decisions for you. That’s
your job. They’re here to advise. They’re here to recommend.
The best cases to come out of this courtroom are the cases where settlement
is put on the record.
Mr. and Mrs. Jones, in answer to the questions, says yes, I agree that
this settlement is a fair and reasonable settlement of all outstanding
issues. And then the attorney says, Mr. Jones, is it not true that I recommended
to you against entering into this agreement? I think you are giving away
too much. Or Mrs. Jones, I don’t think that you are getting enough.
And the litigant turns to the attorney and says, that is exactly true.
You have recommended against it, but I want to do it anyway.
Everyone has done their job. That sounds easy, right? Just make decisions.
Except something happens to many people when they walk into a Family Court.
Some people find it impossible to make decisions. Rather, they depend
on the black robe to make all of the decisions for them, as if somehow
I am automatically smarter than you or know more about you and your family,
than you know yourselves.
Neither of those statements is true. In the whole world, the husband and
wife no more about the real world than I do. I’ll never see most
of you again. All I’m going to know about you is what I read in
a file. I don’t know what drives you, what motivates you. I don’t
know what your life has really been like. So, how am I expected to make
the most personal decisions for you in a better fashion that you can’t
make them for yourselves? But, I will, if you won’t.
So, a couple was in here about a year ago. And they were married all of
six weeks, when the marriage went rocky and that shouldn’t have
posed too many problems. Except that is was now almost eight and a half
months later and of course the other factor that I forgot to mention to
you is that during that six month period, the lady became pregnant.
And here they are sitting here on a motion day, on a Friday, wall to wall
people and my one fear on that day was that she was going to give birth
right here at counsel table and I didn’t know what I was going to
do about that. They each had their attorney with them and it was sort
of late in the afternoon, about three o’clock in the afternoon and
when I looked out, I remember the thought going through my mind that these
people had invested about $2,500, by that time, to hear me render whatever
wonderful legal decision I could render.
So, there they were, $2,500 in debt. And they posed the following legal
question to me. Judge, should the husband be allowed in the delivery room
when the wife is going to give birth? Now, is there anybody out there
that thinks I am better qualified to answer that question than anyone
else in the whole world? Because I’m not. But, they couldn’t decide.
So, I decided. And not that my decision had any value. I said, that I could
not think of anything more intimate or personal than giving birth and
clearly, it should be the mother’s right who was or was not going
to be in the delivery room.
I was pretty satisfied with that. It seemed to make sense. And I thought
they would be happy, except they didn’t leave and they just sat
there, the four of them. And as I was asking myself, you know, did I do
something that terrible that they’re stunned, they can’t move.
And then, again, obviously, that wasn’t the problem. I guess, one
of them figured that my answer was not cost effective. It wasn’t
So, as long as they were here, they has a second question of me. See, two
for 2,500 is a much better deal. And so, I waited for the second question
so that I could expound this wonderful fount of legal knowledge that I
have at my disposal. And they said, Judge, we cannot agree on what to
name the baby.
I don’t make these up. I mean, this is real. So, I said, aren’t
you embarrassed to even raise a question like this in this room full of
strangers? They said, we can’t agree. Make a decision for us. I
said, okay, I volunteer for all sorts of things. I said, come back next
week on my-- I was hoping she really wouldn’t last out the other
week, I said, bring with you a book of baby names. A pretty good resource.
I’m going to throw the book in the air and whatever page it lands
on, is going to be the page with your baby’s name on it. …
So, cases settle, matter of fact, close to 98 percent of our cases settle.
It’s only those cases where one of the parties or one of the advisors
just doesn’t understand what’s going on, cannot deal with
reality, it’s hurting that much. Those cases go on and on and on.
Let me define on and on and on. See, I told you before three years. Three
years until you get a judgement of divorce. But, what makes anybody think
that that is the end of a case? See, the cases that are tried, lose the
one important thing that we can do here. They lose the ability, were there
to be a catharsis, a cleansing, a start of the healing process.
Cases that we try and are subject to examination and cross examination
and finger pointing and bloodletting. Those cases never end, because there
will be an abundance of post judgement applications for one thing or another.
The animosity, the hostility doesn’t go away.
So, we had the case, the husband who made the application before me, for
his ex-wife to contribute money towards the college education of the 19
year-old son. A not unusual application. And the wife came and the husband
came and he brought the 19 year-old son with him. He sat next to dad and
mom brought the 21 year-old son with her. And he sat next to mommy.
The parties were divorced for 13 years and during that 13 year period,
neither the husband or the 19 year-old son had ever spoken one word to
the mother and the 21 year-old son and vice versa. Not only did husband
and wife get divorced, parents divorced children. And that case never
ended. Until all four of them are in the grave, that case will never end.
What, for a couple bucks? For the green crock pot? The grandfather clock?
How long do you want the dispute to go on? You set the time frame.
So, that’s why we’re here today. It’s a lot of why we’re
here today, probably not the most important reason. Some of you may have
already gone through the parenting mediation seminar. Anybody here who
has done that? Any litigants? Just give me a show of hands.
You’ve probably heard some of the remarks before, though I’m
not the one that addresses that seminar every week. Those of you who haven’t,
if you think you’re hurting today, if you think the weight of the
world is on your shoulders, you really ought to speak to your kids.
They’re the ones that are hurting. They’re the ones who are
truly the victims of what’s going on. They’re the ones whose
world has a new set of ground rules that they don’t understand.
They’re the ones who want to do one thing and one thing only. And
that is to make it better again.
They’re the ones who because they’re egocentric, believe that
the reason mommy and daddy are splitting up is because it’s something
they must have done. They don’t know what. They must have done something.
And so they react. Younger ones become thumb suckers and bed wetter’s
again. The older ones begin to have problems in school, both grades and
behavior. Some of the children become very, very protective of one parent,
extremely hostile to the other. Some of the kids try to manipulate both
parents and they hurt. And so, when I meet them and I’ve met hundreds
of these kids, if you ask them what do you want, make a wish, they wish
mommy and daddy would get back together again.
Nice thing about kids, though, is they’re also realists. They know
that’s not going to happen. And so, I ask them to make a second
wish. I’m amazed at the second wish. I shouldn’t be amazed,
it’s obvious when you think about it. I wish mommy and daddy would
stop fighting. Judge, can’t you make them stop fighting?
They can deal with everything else, just not the dispute. All we want to
do is be kids. We want to be able to speak, express our feelings to both
parents, without it possibly being regarded as an act of betrayal by the
other parent. That’s all we want. That’s what they’re
entitled to have, because you have to let go.
To those of you who are parents, what are we really going to do today?
We’re going to separate a legal relationship. You will no longer
be husband and wife. Okay. You’re no longer husband and wife. You’re
still mother and father. That relationship has not ended. What’re
going to happen at the end of this case is, that we expect that we will
be able to co-parent, to communicate and cooperate with each other at
a level probably greater than you’ve been able to achieve when you
were living together. But, isn’t that what your children deserve?
You know, some people I will send today to a co-parenting class, classes.
I’ll shortcut it for you. I’ll tell you what you’re
going to do if you really care about your kids, when all this is over.
I’ll give you the two lessons of co-parenting and all else falls
Lesson number one, if one of you comes into some extra money and you decide
that you want to buy little Janey a new computer, because she’s
been such a great kid, you don’t do it. What you do is you speak
to your ex-spouse and say look, I’ve got this extra couple of bucks
together. I think Janey deserves a new computer. Let’s say we get
it for her. I’ll pay for it, but it’s a gift from mommy and
daddy. That’s what co-parenting is all about.
And the flip side, when little Johnny comes to you and says, daddy, mommy’s
mean to me. She grounded me. She’s really nasty. It’s easy
to pat him on the head and say, hey, you know, what do you expect, that’s
your mother. You’re with me, don’t worry about it. Grounded,
not here. You’re my friend.
Uh-uh. Right answer is, hey, son, I am certain that your mom had a very
good reason for doing what she did and when you’re with me, whatever
discipline she’s imposed, is going to be followed by me. If you
have a problem with the underlying event, then I suggest you speak to
your mother about it. She’s reasonable. She’ll listen to you.
That’s what it’s all about.
What you don’t do though, is use your kids for spies, for messengers.
You really don’t have to find out what kind of car mommy’s
new boyfriend is driving, by asking your kid to find out for you. You
don’t really have to send your child to see her father with the
following message: Daddy, mommy days that if you don’t send more
money, you’re never going to see me again. I mean, children just
love to pass messages like that. And you certainly don’t have to
read to your children the latest affidavits and certifications filed in
our divorce case, as all too many parents do. Or, you could divorce your
children, I guess. Your choices, not mine.
You see at the end of this case, I will never see you again, hopefully.
Not because you’re bad people, because the only way I will ever
see you again, is if your matter is not resolved. So it’s your choice.
How many more times do you want to come back here? How many more times
do you want to be punched into the computer? How many more times do you
want to come into this wonderful building, with that sinking feeling in
the pit of your stomach as to what’s going to happen next? How many
more days, how many more months, and how many more years do you want this
to drag on? That’s what it’s about.
Or let today be the day. Let today be the day that you begin to put it
behind you. That you begin to build anew. It will happen. You’re
all capable of it. You only have to want it bad enough. You have to want
to let go.
I’m going to call the list now. We’ll see who’s here.
… No one leaves here today, unless they have seen the panel and/
or seen me. No one leaves here without a new event date at the very least.
My commitment to you on ESP day is that I do not take lunch. You may, but
I don’t. I also, on many ESP days do not take dinner. I will stay
here as late as there is one more couple genuinely trying to resolve their
case. That’s my commitment to you. All I ask is, that you make decisions
that are realistic. Decisions that parallel the real world out there...
Good luck to all of us.