MESP - Last Stop on the Divorce Local
The time has come for your attorney to present your case to the Matrimonial Early Settlement Panel (MESP.) Theoretically, all the discovery needed for your case is in. Realistically, this is rarely the case. MESP is usually scheduled 3 to 4 months after the complaint and answer are filed. Often the parties are still scrambling and scrounging around trying to find credit card statements, copies of cancelled checks or the like. Sometimes we're waiting for an expert's report or appraisal to come in. Regardless, there is usually enough information to get a pretty clear picture of where the case is going and approach true settlement of the case.
Your attorney will prepare a memorandum outlining the basic facts of the case, the disputed issues and your proposed settlement. The more concise the better. Do not expect your attorney to include your full marital biography. Once again, New Jersey is a no-fault State and no one cares. Secondly, the panel does not have time to read your domestic war and peace novel and you run the risk of the actual important issues being ignored or missed amongst all the angst. This is one area where I am a tad sneaky. Because we are always waiting for new and exciting discovery, I always wait until the night before MESP to write my memorandums. This way they are as up to date as possible and fresh in my mind for presentation. The weasely lawyer part comes in because my clients do not get to see it until right before it's presented. I can say that I have never received a complaint from a client concerning my MESP memorandum. Sometimes not knowing is better.
The panel is made up of experienced family lawyers. There are usually 2 lawyers on the panel. Only the attorneys present the case. Clients are left in the waiting area. Suggested past times while you are waiting for your attorneys to emerge from MESP are glaring at your spouse, telling the stranger sitting next to you all the terrible things your spouse and/or lawyer have done in the loudest voice possible or crying your eyes out and looking pitiful. These are just a few of the ways my clients have amused themselves, I am sure there are infinite possibilities. I would suggest that you not engage in any self-amusement that will get you arrested. The few times I have had that happen I have found that it does not help your case. For many people, this may be the first time you have seen your spouse in a while. Be prepared for this, like it or not, you will have to deal with your spouse. If you have kids, you will have to deal with your spouse for a long long time. You need to learn how to do this. MESP can be a dress rehearsal.
When all the lawyers go behind closed doors for MESP we aren't actually discussing your case, we're drinking coffee and comparing golf games. Only kidding but I have had people semi-accuse me of that. I understand that my client's often feel lost and confused during the divorce process. Sitting outside a closed room while a bunch of attorneys discuss your case does nothing to dispel your feelings of confusion and helplessness. This is another time where you are going to have to trust your lawyer. Your lawyer is presenting your case in the best way possible in order to achieve the best result for you that they can given the facts. The lawyers try to give the panelists their memorandums prior to being called in in order to give them time to read them. When we go in to present usually they have some idea of what the case is about. The panelists ask us questions that will help them form an opinion. Sometimes the lawyers need to point out various facts for further discussion. Once the panel is satisfied that they have a clear picture they will either give us an opinion on the spot or they will ask the lawyers to leave so they can discuss the case between themselves and then will call us back in when they have come to a conclusion.
The panel provides a recommendation for settlement based on the facts presented and according to what they believe a judge might do and what is fair under the law. Sometimes they recommend creative settlements that are far better for the parties than what a judge might have to order as they are not bound by the strict letter of the law like the judge is. The panel will only provide a proposal concerning the financial issues. They will not deal with issues having to do with children such as custody, parenting time and support. Those are issues that require either a separate, specialized mediation or experts. Mediation on those issues usually takes place early in the divorce process as they are so crucial.
Your attorney will go over the proposal with you and tell you if they think you should accept the proposal. I have found that usually the proposal for settlement is pretty good. Sometimes the proposal needs tweaked a little. Rarely do I tell my clients to flat out reject a proposal. When I do tell them to reject a proposal it's usually because the other side has not provided full and/or accurate disclosure and I don't have enough information to properly advise my client. On rare occasions I advise my clients to reject a proposal because quite frankly, the panelists are not very good attorneys and their recommendation makes no sense. I actually agreed with another lawyer once that neither of us would give the recommendation to our clients because it was so bad. Thankfully, this hardly ever happens, most of the attorneys are good at what they do.
If you accept the panels recommendation you can get divorced that day. Even if you accept the proposal there are usually minor issues to hammer out. This can take some time so be patient. What seems minor now can turn into a huge deal 2 weeks after the divorce. The tighter and more specific your settlement the less chance you have of future disputes. I can't tell you how many times I have tried to talk people into specific visitation schedules and they assure me that free and liberal visitation mutually agreed upon will work just fine. Sure it does, until your spouse won't let you have the kids for Grammy's birthday party because they have to be in bed by 8pm. If your lawyer is anal this is one area in which it's a good thing for you.
Once everything is hammered out, we let the judge know that, hurray!, we are settled. We go in front of the judge, in a real court room and put the divorce through. You will be sworn in. Usually you are allowed to testify from the table instead of the witness stand. First you will be asked questions concerning the agreement itself. There are standard questions the attorneys will ask. I usually prepare a written sheet of all the questions for my client to go over so they are prepared for the hearing. After you are through with the settlement agreement, you will be questioned concerning the divorce complaint and/or counterclaim. Again, standard questions. The judge may ask you a few questions. Do not be alarmed, usually the judge is just trying to cover a point of law for the record. Once all the questions are done, the judge grants the divorce. However, you will not get your signed copy of the divorce that day. The actual final judgment of divorce must be sealed and filed. You will get your copy in a week or two.
If you are unable to settle your case on MESP day, your attorneys will inform the judge of this. The judge will then schedule a trial. The trial can be scheduled anywhere from within a few weeks to over a month away. You can settle your case any time up to and including the date of trial. If there are settled issues, you can try only the disputed issues. In any event, in most cases you do not want to go to trial. They are a nightmare. I can count on one hand the cases that I truly felt needed to go to trial. These are rare instances based on rare cases. Although we all want to be special, chances are your case is not one of them. Accept it now, you are going to have to compromise. Having a judge forcing you to compromise after a trial is an expensive and painful way to learn that lesson. Settling is not giving in or giving up your principles, it's just smart.
Next, the trial of a trial.
Your attorney will prepare a memorandum outlining the basic facts of the case, the disputed issues and your proposed settlement. The more concise the better. Do not expect your attorney to include your full marital biography. Once again, New Jersey is a no-fault State and no one cares. Secondly, the panel does not have time to read your domestic war and peace novel and you run the risk of the actual important issues being ignored or missed amongst all the angst. This is one area where I am a tad sneaky. Because we are always waiting for new and exciting discovery, I always wait until the night before MESP to write my memorandums. This way they are as up to date as possible and fresh in my mind for presentation. The weasely lawyer part comes in because my clients do not get to see it until right before it's presented. I can say that I have never received a complaint from a client concerning my MESP memorandum. Sometimes not knowing is better.
The panel is made up of experienced family lawyers. There are usually 2 lawyers on the panel. Only the attorneys present the case. Clients are left in the waiting area. Suggested past times while you are waiting for your attorneys to emerge from MESP are glaring at your spouse, telling the stranger sitting next to you all the terrible things your spouse and/or lawyer have done in the loudest voice possible or crying your eyes out and looking pitiful. These are just a few of the ways my clients have amused themselves, I am sure there are infinite possibilities. I would suggest that you not engage in any self-amusement that will get you arrested. The few times I have had that happen I have found that it does not help your case. For many people, this may be the first time you have seen your spouse in a while. Be prepared for this, like it or not, you will have to deal with your spouse. If you have kids, you will have to deal with your spouse for a long long time. You need to learn how to do this. MESP can be a dress rehearsal.
When all the lawyers go behind closed doors for MESP we aren't actually discussing your case, we're drinking coffee and comparing golf games. Only kidding but I have had people semi-accuse me of that. I understand that my client's often feel lost and confused during the divorce process. Sitting outside a closed room while a bunch of attorneys discuss your case does nothing to dispel your feelings of confusion and helplessness. This is another time where you are going to have to trust your lawyer. Your lawyer is presenting your case in the best way possible in order to achieve the best result for you that they can given the facts. The lawyers try to give the panelists their memorandums prior to being called in in order to give them time to read them. When we go in to present usually they have some idea of what the case is about. The panelists ask us questions that will help them form an opinion. Sometimes the lawyers need to point out various facts for further discussion. Once the panel is satisfied that they have a clear picture they will either give us an opinion on the spot or they will ask the lawyers to leave so they can discuss the case between themselves and then will call us back in when they have come to a conclusion.
The panel provides a recommendation for settlement based on the facts presented and according to what they believe a judge might do and what is fair under the law. Sometimes they recommend creative settlements that are far better for the parties than what a judge might have to order as they are not bound by the strict letter of the law like the judge is. The panel will only provide a proposal concerning the financial issues. They will not deal with issues having to do with children such as custody, parenting time and support. Those are issues that require either a separate, specialized mediation or experts. Mediation on those issues usually takes place early in the divorce process as they are so crucial.
Your attorney will go over the proposal with you and tell you if they think you should accept the proposal. I have found that usually the proposal for settlement is pretty good. Sometimes the proposal needs tweaked a little. Rarely do I tell my clients to flat out reject a proposal. When I do tell them to reject a proposal it's usually because the other side has not provided full and/or accurate disclosure and I don't have enough information to properly advise my client. On rare occasions I advise my clients to reject a proposal because quite frankly, the panelists are not very good attorneys and their recommendation makes no sense. I actually agreed with another lawyer once that neither of us would give the recommendation to our clients because it was so bad. Thankfully, this hardly ever happens, most of the attorneys are good at what they do.
If you accept the panels recommendation you can get divorced that day. Even if you accept the proposal there are usually minor issues to hammer out. This can take some time so be patient. What seems minor now can turn into a huge deal 2 weeks after the divorce. The tighter and more specific your settlement the less chance you have of future disputes. I can't tell you how many times I have tried to talk people into specific visitation schedules and they assure me that free and liberal visitation mutually agreed upon will work just fine. Sure it does, until your spouse won't let you have the kids for Grammy's birthday party because they have to be in bed by 8pm. If your lawyer is anal this is one area in which it's a good thing for you.
Once everything is hammered out, we let the judge know that, hurray!, we are settled. We go in front of the judge, in a real court room and put the divorce through. You will be sworn in. Usually you are allowed to testify from the table instead of the witness stand. First you will be asked questions concerning the agreement itself. There are standard questions the attorneys will ask. I usually prepare a written sheet of all the questions for my client to go over so they are prepared for the hearing. After you are through with the settlement agreement, you will be questioned concerning the divorce complaint and/or counterclaim. Again, standard questions. The judge may ask you a few questions. Do not be alarmed, usually the judge is just trying to cover a point of law for the record. Once all the questions are done, the judge grants the divorce. However, you will not get your signed copy of the divorce that day. The actual final judgment of divorce must be sealed and filed. You will get your copy in a week or two.
If you are unable to settle your case on MESP day, your attorneys will inform the judge of this. The judge will then schedule a trial. The trial can be scheduled anywhere from within a few weeks to over a month away. You can settle your case any time up to and including the date of trial. If there are settled issues, you can try only the disputed issues. In any event, in most cases you do not want to go to trial. They are a nightmare. I can count on one hand the cases that I truly felt needed to go to trial. These are rare instances based on rare cases. Although we all want to be special, chances are your case is not one of them. Accept it now, you are going to have to compromise. Having a judge forcing you to compromise after a trial is an expensive and painful way to learn that lesson. Settling is not giving in or giving up your principles, it's just smart.
Next, the trial of a trial.
posted by The Legal Diva | 6:07 PM
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