By Sheryl J. Seiden [1]

The Case Management Order ("CMO") is generally the first order entered by the Court in a matrimonial action. In many counties, parties and counsel are not required to appear in Court for the first Case Management Conference if they can consent to the terms of the CMO. In other counties, an appearance is necessary. Generally, when a CMO is permitted to be submitted without the need for an appearance, counsel and the parties opt not to incur the counsel fees to appear in Court. The purposes of the CMO is intended to encourage parties to define the issues in dispute and determine what discovery is needed in order to ultimately resolve these issues. It is very important that particular attention is paid to the CMO as it sets the deadlines and outlines the scope of discovery for the duration of the matrimonial matter.

What Track To Select

The first decision to be made in completing the CMO is whether the case should be listed on the expedited track, standard track, priority track or complex tract. Use caution not to classify your case as a standard track case where there are issues that need to be expedited or there are complex issues which will require additional time for a resolution to be reached. The expedited tract is reserved for the cases where discovery can be completed quickly – within 90 days from the date of the CMO. The priority track is reserved for cases involving time sensitive issues which need to be addressed in an expedited manner, such as custody cases, where one party needs to relocate shortly, or where a party is ill or a short marriage with no children. The complex track is reserved for complicated cases which require extensive discovery which will take longer than 120 days permitted under the standard track. In a complex track case, a second case management conference will generally be set by the Court. If you have a case involving business valuations, or complex discovery, the complex tract is likely appropriate. The standard track is the typical track selected by counsel as it applies to the "average case" and presumes that discovery can be completed within a four month period.

Custody and Parenting Time

If the parties have children that are not emancipated, the CMO provides direction for how to address these issues. If custody and parenting time issues are not resolved, then the matter can be referred to custody/parenting time mediation, a program provided by the Court at no additional cost to the clients. Counsel generally do not appear for this custody/parenting time mediation program. If the custody/parenting do not appear to be issues that can be referred to mediation, then the CMO requires that a custody/parenting time plan be filed in accordance with R 5:8-5, which is due 75 days after the last pleading is filed. As a matter of practice, a custody/parenting time plan can be filed even if the parties are proceeding to mediation as it provides a road map for the parties as to their respective positions on custody/parenting time. It also forces the issue of whether custody is really an issue or whether the issues are limited to the non-custodial parent's parenting time with the children.

If custody/parenting time is a genuine issue, then the CMO should include a provision for the retention of a custody expert. The parties can either retain one joint expert, the cost of which can be equally shared or allocated proportionally by the parties or paid from marital assets without prejudice or each party can retain their own custody expert at their own expense, without prejudice. Often, if custody and/or parenting time is an issue, in the CMO, you can indicate that if the issues are not resolved in mediation, then custody expert(s) will be retained within a certain number of days thereafter. Such a provision provides the parties with an opportunity to settle the issues without the need for incurring expert fees while knowing that they have a limited time to do so.

Issues in Dispute:

The CMO forces parties to identify the issues that are in dispute from the commencement of the case. This is the time that parties need to decide whether they intend to pursue all of the issues detailed in their pleadings. If the client is unsure of whether they want to pursue the issue, check off the box and preserve your client's rights to proceed on this issue. However, use caution not to create issues where they do not exist. For example, if custody is not an issue and the issue regarding the children is limited to parenting time issues, specify that parenting time issues exist, but do not check off the custody box.

Deadlines for CISes and Discovery:

Case Information Statement: Pursuant to 5:5-2, Case Information Statements ("CIS" or CISes") are required to be filed 20 days after the Answer or Appearance is filed. In some counties, the Court will require counsel and the parties to appear if the CISes are not filed prior to the submission of the CMO. In other counties, the Court will relax this rule and permit the parties to provide a deadline for the submission of their CISes.

Interrogatories/Notice to Produce: The discovery should be propounded after the exchange of CISes so that it can be tailored to the specific issues in the case. There may be specific documents that you request or interrogatories that you ask for based on certain income figures, expenses detailed or assets or liabilities listed on the CIS. Perhaps there is a statement of specific problems listed by the litigant in which discovery is needed to obtain any proofs that exist to support this alleged problem.

Pursuant to Rules 4:18-1(2) and 4:17-4(b), Answers to Notice to Produce shall be served within 35 days and Interrogatory Responses shall be served within 60 days of when they are propounded. The CMO provides the opportunity to shorten or extend this deadline by consent and order of the Court. When selecting a date to propound the discovery, use dates that are realistic so you can avoid the need to submit a consent order requesting additional time to respond to discovery. If the parties are engaging in mediation without full discovery, perhaps you want to extend discovery as long as permissible (120 days for a standard case, 90 days for an expedited case).

Depositions: It is important to reserve the right to take depositions of the parties, third parties and experts if needed. Absent special circumstances, depositions are usually conducted after the exchange of discovery. If you are not sure whether depositions will be needed you can either include an outside date or reserve the right to take depositions and in a complex case, you can request that scheduling be addressed at the second Case Management Conference.

Bank Statements, Pensions and Other Records: Bank statements, pension and other records are typically requested and produced with the Notice to Produce. There may be times, however, when certain discovery is needed to be obtained prior to the deadline for the document production. For example, if you represent the non-titled spouse who has no access to any financial information, certain documents may be needed to complete his/her CIS or perhaps bank records are needed to make a counsel fee application.

Miscellaneous: The CMO permits you to outline other discovery that might be needed in its catchall provision. Although not often utilized by attorneys, this is a place where the CMO can be tailored to the issues in your case.

Experts: The final area on the CMO for lawyers to complete is the expert section. First, you need to determine what type of expert(s) are required in your case. If one party seeks to retain the marital residence, then a real estate appraisal will be needed. If the parties cannot agree on the division of personal property or if there is personal property of significant value (ie. certain collections, jewelry etc), then an expert can assist in opining upon value. If one party owns a business, or a portion thereof, business appraisals may be needed. If a party is compensated from his/her business, then a cash flow analysis may be needed to determine the income that he/she has available to pay support. If one party has a pension and the parties are not going to divide the marital portion via a qualified domestic relations order, then a pension evaluation will be needed so the non-titled spouse can be bought out of his her share of the pension and/or the non-titled spouse's share of the pension can be off-set against other marital assets that he/she will be retaining. If possible, try to name the expert(s) in the CMO that will be or have been retained to avoid a later dispute as to which expert should be retained in the matter.

The second question is whether the litigants will retain their own experts or whether a joint expert will suffice. A possible solution to this never ending debate is to agree to retain a joint expert but reserve the right for a party to retain his/her own expert within a certain period of time after the joint expert report is served.

The third question to be addressed is how the expert fees will be paid. The fees can either be paid from marital assets, without prejudice, if there are monies available, one party can advance 100% of the cost without prejudice, or they can be equally or proportionally (prorate based on parties incomes) divided between the parties. If counsel cannot agree on how the cost of the experts should be funded, this may trigger the need for a telephone case management issue to resolve this issue. In such a case, you can complete the rest of the CMO, execute the CMO and submit it to the Court with a letter outlining the unresolved issue and asking the Court to have a telephone conference to address the unresolved issue.

Further Ordered Sections:

The final three sections of the CMO are completed by the Court. If the CMO is being submitted without the need for an appearance, then the Court will assign the matter for an Early Settlement Panel ("ESP") date after the conclusion of all discovery. If the conclusion of discovery falls at a time when counsel or a party will not be available, consider advising the Court of the date in which you and/or a party is not available for the ESP at the time that the CMO is submitted to the Court. As ESPs are generally conducted on the same day of the week in each county, it is easy to alert the Court to the specific dates which are unavailable.

The Court may schedule a second Case Management Conference, which usually would be scheduled at the conclusion of discovery prior to the ESP date. The Court may also assign a specific judge to address the pendente lite issues prior to trial.

Conclusion:

Once you have completed a draft of the CMO or a review of a CMO prepared by your adversary, be sure to review the CMO with your client to explain the deadlines so he/she can understand his/her obligations during the pendency of the matrimonial matter. Be sure to docket the dates. If a deadline has to be extended, technically, leave of Court is needed which would require the submission of a consent order confirming an agreement between counsel to extend the deadline for the completion of discovery will not necessarily be acknowledged by the Court. Accordingly, choose your deadlines, issues in dispute and experts carefully.

[1] Sheryl J. Seiden is an attorney admitted to practice law in the States of New Jersey and New York. She is the founding partner of Seiden Family Law, LLC in Cranford, NJ. She is an officer of the Family Law Section of the New Jersey State Bar Association and a fellow of the American Academy of Matrimonial Lawyers – New Jersey Chapter. She is a frequent lecturer on topics affecting the practice of family law.