What Would A Judge Do?

IT’S IN HER DISCRETION.  SHOULD WE LEAVE IT TO HER OR TRY AND WORK IT OUT?

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. Three different Judges in the same courthouse can make three different decisions.  There are parameters and windows of appropriateness under the law, but the Judge has a wide latitude on a number of issues i.e. the alimony statute is not a formula it is based on more subjective factors some of which are, ability to pay, ability to earn and lifestyle.  Tax returns and income information must be provided for review and analysis by the Judge. However, some Judges are more passive and will not “push” for a spouse to work or earn more , other Judges impute income to the non-earning spouse.  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 can 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.  The Judge must determine based on the testimony if there was an act of violence or for example was it just a marital fight, not rising to domestic violence.   Alternatively, if the parties prefer to work together rather than risk an FRO and the cost and 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, if necessary.  Most cases can be resolved through alternative Dispute Resolution i.e. Mediation, without Judicial intervention and judicial discretion playing a part.

In a case resolved outside of Court, parties can customize creative solutions such as  buyouts of pensions, lump sum alimony, and other non-traditional solutions. When settling outside of Court, creative custom agreements are possible. In Court there are specific parameters for a Judge and he/she has discretion.  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.

For a free half hour consultation call Helfand & Associates at 973-428-0800, 0ur experienced matrimonial attorneys, handling all aspects of Family Law.

Tanya N. Helfand, Esq. is a Certified Matrimonial Attorney, a Mediator and Panelist in the Morris and Essex County ESP Programs.  The firm welcomes your questions and inquiries at [email protected]. We handle cases in Bergen, Essex, Morris, Hudson, Union, Somerset, Sussex and other New Jersey counties.