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Discretion of the Judge and Your Power to Settle


Every day numerous judges throughout the State hear cases involving family matters. The Courts/Judges process these matters and remedy the problem using an Order for relief and their discretion.

Parties without the input of a judge can also create their own settlement with the help of attorneys, mediators, arbitrators or on their own. This is known as alternative dispute resolutions. Settlements are formalized into an enforceable Consent Order filed with the Court.

Judge’s decisions may vary with the same set of facts. Even an issue such as child support can vary. There are child support guidelines which ensure uniformity based upon parents’ gross income, number of overnights with the child, child care costs and medical insurance costs. There can still be variables. If one parent is underemployed, the Courts will impute additional income to that person. The Judge’s discretionary power comes into play.

If there is domestic violence, the victim can go to trial before a judge to get a Final Restraining Order. Alternatively, if the parties are no longer living together, civil restraints by agreement offers protection and contain parenting time and support clauses. There is no risk of losing a domestic violence trial if you enter a consent order and several issues can get resolved at one time. If the civil restraints are in fact violated, the victim can call the police and start the process to get a Final Restraining Order again.

In a case resolved outside of Court, parties can discuss buyouts of pensions, lump sum alimony, and other non-traditional solutions. When settling outside of Court, creative custom agreements are possible. What works for you and your family may be different than the next family. Judges are, in fact, limited in the type of awards they can give. It is very important to weight options whether to go to Court or settle outside of Court.

Tanya N. Helfand, Esq. concentrates in Family Law, she is a Certified Matrimonial Attorney and mediator. The firm welcomes your questions and inquiries at [email protected] Everything is confidential. This article is not legal advice. Please consult an attorney.

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