By Joseph P. Cadicina, Esq.

The Supreme Court of New Jersey has adopted significant rule amendments in the Family Law Practice – effective April 5 – that have dramatically changed the procedures that attorneys and clients must follow in matrimonial litigation.

For instance, complaints for divorce must now contain an affidavit of insurance coverage pursuant to Rule 5:4-2(f). This affidavit must list all known insurance coverages of the parties and their minor children, including, but not limited to, life, health, automobile and home owners policies. In addition, the affidavit must specify whether any insurance coverage was canceled or modified within 90 days before the filing of the complaint for divorce. The insurance listed in the affidavit must be maintained pending further order from the Court. This rule change is intended to eliminate problems that occur when a complaint for divorce is filed, or about to be filed, and a spouse cancels or modifies coverages to retaliate against the filing spouse. Rule 5:4-2 now requires the parties to maintain all existing insurance until further order of the Court.

Obtaining an award of attorney fees has been difficult for litigants. However, Rule 5:3-5(c) has changed the manner in which the court may grant pendente lite or after-trial counsel fees. In determining the amount of fee awarded, the Court should consider several factors, including the financial circumstances of the parties; the ability of the parties to pay their own fees or contribute to the fees of the other party; the reasonableness and good faith of the positions advanced by the parties; the extent of the fees incurred by both parties; any fees previously awarded; the amount of fees previously paid to counsel by each party; the result obtained; the degree to which fees were incurred to enforce existing orders or to compel discovery; and any other factor bearing on the fairness of the award. Thus, the new rule change has provided the trial courts with standards in which to rely to assess counsel fees against a litigant. Furthermore, trial courts have also been authorized to direct parties to sell, mortgage or otherwise encumber or pledge marital assets – to the extent the court deems necessary – to permit both parties to fund the litigation. This rule change will level the playing field on which a litigant can file or defend an action for divorce.

The Supreme Court has also adopted a mandatory requirement that all attorney retainer agreements provide a statement of client rights and responsibilities in civil family actions. The Court has adopted ten client rights and nine client responsibilities that must be attached to the retainer agreements. Client’s rights are:

• To have their attorney diligently advocate their interest within the bounds of the law and legal ethics;
• To have the fee arrangement fully and completely explained prior to entering into any agreement for services;
• To have a written retainer agreement describing the financial terms of the relationship between the client and the attorney;
• To refuse to enter into any unacceptable fee arrangement or modification of a fee arrangement;
• To be provided information as to the attorney(s) who will be primarily responsible for the matter and all other legal staff who will be working on the matter, as well as to the costs for those individuals;
• To be provided bills on a regular basis, itemized as to the charges and time spent on each activity;
• To be informed of and be present at any court proceeding involving their case unless otherwise directed by the court;
• To be provided copies of all documents presented to the court by any party in their matter unless otherwise ordered by the court;
• To be afforded reasonable access to their attorneys; and
• To make the final decision as to whether, when, and how to settle their cases and as to economic and other positions to be taken with respect to issues in the cases.

Clients’ responsibilities established by the Supreme Court are as follows:

• To provide full and accurate information to their attorneys regarding their matter;
• To be available to participate in a timely fashion regarding their matter and to respond reasonably to requests from their counsel;
• To advise their attorneys promptly of any change in their lives that might reasonably be expected to affect the handling of their matter;
• To pay for legal services rendered on their behalf within a time period set forth in the retainer agreement;
• To review diligently all bills submitted by their attorneys and, within a reasonable time, raise any objections regarding billing;
• To avoid taking any position in their matter for any improper purpose, such as to delay the proceeding or intentionally increase the cost to other litigants;
• To refrain from using their attorneys for any improper means;
• To recognize and be responsible for the costs associated with any action initiated or requested by the client; and
• To provide sufficient time for their attorneys to explain the financial costs and other ramifications of a potential action in their matter, and to consider the advice of their attorneys.

The client rights and responsibilities requirement is intended to avoid disputes between attorneys and clients regarding fees.

The Supreme Court has also adopted a rule that limits the number of pages in motions filed in the Family Court. A certification in support of a motion shall not exceed fifteen (15) pages. A certification in opposition to a motion or in support of a cross motion or both shall not exceed twenty-five (25) pages. A reply certificate to opposing pleadings shall not exceed ten (10) pages.

The page limits have limited each party to a total of twenty-five (25) pages when filing certifications for a notice of motion and reply or an opposition/cross motion. The court has excluded from consideration parties’ certifications when they have exceeded the page limitations of Rule 5:5-4. Thus, it is important for litigants to limit their certifications and provide only relevant information when submitting one.

The rule changes listed above do not contain all of the Supreme Courts amendments to the rules governing practice in Family Court but include some of the highlights. The rule changes discussed in this article significantly affect clients in divorce matters, making it absolutely necessary for attorneys and litigants to comply with the new rules.