Back to School and Back to Court, Litigating your Divorce and Custody Matter

by Wilentz, Goldman & Spitzer P.A.

Parents Yelling & Upset ChildEvery September brings excitement for thousands of children leaving the house for the first time and attending school and for those going back to school.  The little yellow bus turning the corner also brings excitement and some rest and relaxation to the parents.  But seriously, it is also a return to the courthouse for many families that are involved in either divorce or custody litigation.  Most judges take vacations in July and August, so if the parties are already involved in litigation, it should have been pretty quiet months (unless emergent applications were filed).  If the case has already been filed, the court may schedule (or already have scheduled) either case management conferences (CMC) to get the parties and their attorneys familiar with the Judge and their courtroom procedures or early settlement panel (ESP) where the parties and attorneys meet in court and experienced family law attorneys attempt to provide solutions to the parties issues.

There are other procedures that the parties can file, which are more cost effective and can be quite beneficial to the parties at the same time:


Mediation is a process where the parties (either husband and wife or parents of the child/ren) meet to resolve their differences with the help of a trained, impartial third party.  The parties, with or without lawyers, are brought together by the mediator in a neutral setting.  The parties should agree in advance whether or not they want their attorney present.  Parties are encouraged to retain an attorney to advise them of their rights during the mediation process. Usually if one side brings their attorney, it makes sense that the other side have their attorney present as well.

A mediator does not represent either side and does not offer legal advice.  The mediator’s role is not to advocate for the parties, but to assist in moderating the discussions towards amicable resolution.  The mediator helps the parties identify the issues, gather the information they need to make informed decisions, and communicate so that they can find a solution agreeable to both.  Mediation is designed to facilitate settlements in an informal, non-adversarial manner.  If a temporary or final restraining order exists between the parties, they cannot participate in mediation.  Once the parties reach an agreement or understanding, the mediator will prepare a Memorandum of Understanding (MOU) for the parties to submit to their attorneys to review.  Once the attorneys agree on the terms to be put into a divorce/custodial agreement, the agreement is then drawn up and once fully executed, will be presented to the court to either get divorce or resolve the custodial issues.


In an arbitration proceeding, an impartial third party decides the selected issues in a case. The parties can select the arbitrator and agree on which issues the arbitrator will decide.  The parties should also agree in advance whether the arbitrator’s decisions will be binding on them or instead treated merely as a recommendation.  If the issues are binding, that means whatever the arbitrator says, the parties will be bound.  If just a recommendation, then the parties are free to accept, tweak and/or ignore.  While an arbitrator may decide issues within a divorce case, the judge would still make the final determination as to whether to grant the divorce.  All agreements should be finalized and documented in writing and then submitted to the court.

Divorce can be devastating – whether you are the one who initiated the filing of the divorce papers or on the receiving end.  It can also be an uplifting and educating experience.  Accept that your divorce is a major change in your life.  This is true not only for you, but for your child/ren as well.  Try not to position your child/dren against the other parent – it will only hurt you in the end.  Don’t ask your family or friends to take sides – you may reconcile with your spouse, but those hurt feelings with your family and friends will linger for years to come.  And stay off Facebook! Anything that is posted, while removed, will forever be out into the internet. 

A divorce or custody matter can also be very expensive.  Your attorney is not your therapist.  She can only give you legal advice and hope you accept it.  She can be compassionate and give you moral support.  But keep in mind - you will spend a lot of money on counsel fees if you treat your attorney as your “therapist”.  Learning how to use your attorney, is key to minimizing your attorney fees in the long run.

The most important thing to remember is that this is your divorce/custody matter.  With the advice, leadership and counsel of your attorney, you call the shots and make the decisions that will positively affect your life and your children’s lives.  You may not get everything that you want or think you are entitled to at the end of your divorce, but you should be able to leave the process respecting and loving yourself.  The goal should be to become a better person and parent, despite the divorce/custody process.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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