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Equitable Distribution
By Aaron D. Weems, Esq., Chair, Family Law Section
eginning in April, President Judge Thomas M. DelRicci
and Judge Carolyn Carluccio rolled out a new equitable
distribution procedure in response to the pandemic-created
suspension of equitable distribution hearings. This procedure not
only addresses the backlog of equitable distribution cases that
accumulated over the past year but also created an opportunity to
overhaul the equitable distribution process to improve the speed
and efficiency of adjudicating equitable distribution cases.
The new procedure addresses two distinct classes of cases: a
backlog of " old " cases and those cases filed after April 1st.
For the " old " cases, a 150-case backlog was identified by the
equitable distribution hearing officers, of which fifty (50) were
deemed to be " trial ready. " These fifty (50) cases were subject to
a procedure by which they were conferenced with Judge Wendy
Rothstein and, if not settled, scheduled for trials beginning in
June with one of the equitable distribution hearing officers.
After trying these cases, the hearing officers will redirect their
focus on the other pending cases, both among the backlog, and
subsequently filed cases as part of the new procedure.
The new equitable distribution procedure can be distilled
into three stages: a case management conference; a settlement
conference; and a record equitable distribution hearing.
The path for getting to a case management conference will
require certification as part of the grounds order process that
discovery is complete. Though this has been an aspect of the
past procedure, under the new system the failure to complete
discovery in a timely fashion may result in evidentiary preclusion
orders later on. A hearing officer will not be assigned until and
unless both sides certify the completion of discovery. However,
once discovery is certified and the Grounds Order entered,
litigants can expect a case management conference within
approximately thirty (30) days.
At the case management conference, clients will not need to
attend but should be available to address any scheduling or other
questions. Attorneys will need to be prepared to discuss updates
or issues which may exist or they anticipate in preparation for
trial. Deadlines for filing inventories and updates will be set at
this conference.
Approximately forty-five (45) to sixty (60) days after the
case management conference, the parties can expect to have a
settlement conference. Settlement conferences will be virtual
for the time being with the parties in attendance and engaged in
the settlement process. Hearing officers will have morning and
afternoon settlement sessions, so there will be a heavy emphasis
on making these sessions as productive as possible and give
litigants ample time to resolve the case.
Prehearing statements conforming to Rule 1920.33 will be
required five days in advance of the settlement conference and, as
previously referenced, discovery should be complete and requests
for additional discovery will not be entertained. If a settlement
is reached, the hearing officer will have the ability to have the
settlement entered on the record at that time.
If a settlement is not reached, there will be a stipulation
prepared by the hearing officer and signed by the parties and
counsel identifying those issues and values which are resolved,
as well as any issues that remain in dispute. This stipulation will
significantly affect the scope of the trial and the parties will be
expected to establish the length of the trial needed for their case.
An Order incorporating the stipulated issues will be issued with
a trial date approximately sixty (60) days from the settlement
conference, as well as establishing deadlines for the submission
of witness and exhibit lists, proposed findings of facts based on
anticipated evidence, and detailed proposed distribution orders.
The most significant change in this process is the elimination
of the de novo hearing procedure in favor of record hearings
before the hearing officers and appeals by exception. The obvious
consequence to this is that establishing a clear record is critical
with objections on the record and hearing officers making
evidentiary determinations. The hearings will be held in person
in a courtroom or conference room equipped with appropriate
recording equipment and held until completed. The hearing
officer may also exercise their discretion to ensure that each side
is afforded sufficient time to try their case and that neither side
limits the other's presentation by taking longer than represented
at the settlement conference.
Continuances will need to be made no later than 15 days in
advance and will not be granted unless exigent circumstances
exist. Consequently, counsel will need to anticipate evidentiary
needs and witness availability during the settlement conference
and consider the possibility of taking trial depositions of
witnesses unavailable on the day of trial. Due to the speed of the
process, a heavier emphasis will be placed on attorneys to have
their case ready earlier than may have typically occurred under
the de novo process.
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