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Straight Talk From The Trial Court Bench (pt. 1)

STRAIGHT TALK FROM THE TRIAL COURT BENCH

Honorable ROBERT FELDMAN, J.S.C.

For many years the Honorable ROBERT FELDMAN “sat” as a Family Court Judge in the “Monmouth County Vicinage” at the Monmouth County Court, Freehold, New Jersey. The following is a slightly edited transcript of one of his morning talks to about thirty couples ordered to appear at Court for mandatory “Early Settlement Panel” day - an informal effort at Court to settle their cases.

Judge FELDMAN believes in straight talk, and the ability of people to be rational when confronted with the unvarnished truth. He communicates from the heart and avoids institutional “speak.” I purchased transcripts of several of his morning talks years ago. The reason I did so will become crystal clear as you read his advice - spoken from the Heart and years of experience as a family practitioner and family Court Judge. Judge FELDMAN was not bounded by the need to be “politically correct.” Such lucid and candid statements spoken by a sitting Judge can be found on no other attorney web site.

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THE COURT: Judgement panel day is a day of decision making. It’s a tough day. It’s a day when this courtroom is 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 can it evolve to this and it did.

In Monmouth County alone, there are 2,000 new divorce cases instituted annually. 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 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 then 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 advise 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 ending this.

What I do on ESP [Early Settlement Panel] 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 it’s 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, it’s 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 consigliore, 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 worth $2,500.

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, the parents divorced their children; and the children did not speak to each other. 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 wetters 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? Were 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 into place.

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 says 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, 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.

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