Getting a divorce in N.J. becomes tough because of judge shortage

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Despite a kidnapping threat, a mother can’t get a court order to secure her child’s passport. Parents are unable to enroll children in school due to custody battles. A woman is forced to live with a partner who cuts off the electricity in her home and blocks her access to any bank accounts.

These are some of the victims of the protracted judge shortage in New Jersey, which has a backlog of nearly 4,000 divorce proceedings and another roughly 4,700 other family law cases. Some counties are entirely blocked from holding any divorce trials because there aren’t enough judges to manage civil dockets.

While uncontested splits move apace, the delays for fighting couples are measured in years, sometimes for more than a decade, lawyers say. The state court system says these cases are supposed to be resolved within 12 months of filing.

“This is what children are growing up with: Mom and Dad stuck in limbo, having not nice things to say about each other – the whole family is walking on eggshells,” said Jeralyn L. Lawrence, a divorce and family law attorney who was the New Jersey State Bar Association president from 2022 to May 2023. “That is the generation of children we’re raising in New Jersey.”

New Jersey’s judicial vacancies have persisted because it’s the only state in the nation where any senator can block the appointment of a jurist in their home county in a process called courtesy, similar to the U.S. Senate’s blue-slip system for federal judicial nominations. Accelerated retirements have exacerbated the problem as well.

Attorneys are increasingly coming forward with stories of human tragedy in hopes it will spur state senators to confirm more judges.

Current New Jersey State Bar President Timothy F. McGoughran called the situation “absurd” because “children are living in toxic environments” that could be resolved by more appointments.

“There’s nothing worse as a lawyer than your clients asking, ‘When is my trial?’ And you saying, ‘I don’t know – never?'” he said.

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Trial courts are the trenches where civil litigators battle. Their bloodless weapons are procedural rules, used to secure evidence and score judicial rulings that can resolve legal disputes or provide dealmaking leverage.

With no trial dates or ability to get judges’ orders resolving smaller leverage-building issues, the result is stalemate.

There are 433 trial court judge positions in New Jersey, according to the state statistics. The system can handle vacancies of up to 30 judges statewide before judges must start prioritizing emergencies and criminal matters at the expense of civil cases. New Jersey currently has nearly double those vacancies at 57, which is debilitating to the legal system but less than the crippling record-high 75 vacancies the courts saw last year.

“If a seat is left vacant for just a few months, the impact can be relatively modest. It’s quite another thing if a judgeship remains unfilled for two, three, sometimes four years, as is the case in a number of parts in the state,” New Jersey Chief Justice Stuart Rabner said in public remarks this spring. “In those situations, a single vacancy can lead to delays not just in hundreds of cases but well more than a thousand.”

New Jersey had a backlog of 41,148 civil cases that court administrators say should have been resolved by now. Dockets are so squeezed, Rabner has stopped civil and matrimonial trials in several counties this year.

Those blocks stand in Passaic, Somerset, Warren, and Hunterdon counties, but the crisis is statewide because judges everywhere are overwhelmed, said Lisa F. Chrystal, a former presiding judge in the family division of Union County who retired in 2022 after 22 years on the bench.

“Even in counties where trials are not suspended, it’s almost impossible to conduct a divorce trial or civil trial,” she said.

In a typical day, Chrystal saw eight family law cases in the morning, eight cases in the afternoon, handled constant interruptions from emergencies all day, and there wasn’t a single night she didn’t bring paperwork home with her.

“Sometimes I look back at it, really, and I wonder how I did that job for 20 years,” said Chrystal, now a counsel at Brach Eichler specializing in mediation and arbitration.

Backlogs are growing, not ebbing, in several regions. In nine of New Jersey’s 21 counties “clearance rates” – a calculation that shows whether courts dispose of more cases than they’re taking in – are underwater for civil matters. Two-thirds of the counties have growing dissolution – divorce and separation – dockets.

The judge shortage has broad spillover effects beyond family law, with courts closed to other civil litigants mired in unending disputes. A lack of trial dates spells dire consequences for the injured and elderly, Edward J. Rebenack, a co-founder of Rebenack Aronow & Mascolo.

“Quite often, it’s not until the insurance company has its feet to fire, when we’re picking a jury, that they get to consider serious settlement,” he said.

He urged a court that wouldn’t give his clients a trial date to transfer cases to another county. Hunterdon County Superior Court Judge Kevin M. Shanahan ruled that he didn’t have power to move the litigation, and he denied that request in six cases, including one brought by a 97-year-old plaintiff suing her bank.

Rebenack sees clients suing over injuries, unable to pay bills, and falling prey to presettlement loan providers that charge as high as 30% to 40% interest for their loans. Months or years will go by without a trial date, and interest swallows whatever recovery these plaintiffs might have gotten for their injuries.

“We’re at a complete standstill,” he said. “It’s become an absolute mess.”

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Law professors and litigators cite several factors contributing to the dearth of judges, but most place the harshest criticism on the “courtesy” appointment system that places great power in the hands of state senators.

The Covid-19 pandemic created backlogs as courts adjusted to remote proceedings. Since then overworked judges have been retiring earlier than in past generations. “Discretionary retirements” – judges leaving the bench ahead of the mandatory retirement age of 70 – have roughly doubled in recent years, according to state statistics.

But the “vexing” problem of New Jersey senatorial courtesy “has the potential to really undermine the public’s confidence in the judiciary,” said Rutgers Law School Professor John J. Farmer Jr.

Farmer, who served as Republican Gov. Christine Todd Whitman’s chief counsel, said the Senate is exerting more power than it used to in an effort by both Democratic and Republican politicians to link certain backroom deals to the nomination of judges, covering anything from budget actions to other appointments.

Previous administrations would threaten senators with leaking courtesy blocks to the press in hopes of pressure campaign, but increased partisanship, weakened local press, and a state Supreme Court ruling upholding the process have calcified the problem, Farmer said.

Depending on the county and where the nominee lives, it’s possible that five senators must unanimously sign off on a nominee, Farmer said. That difficulty compounds with scheduling struggles of getting part-time legislators into the same room with the governor’s team during a heated state Legislature campaign season.

That means New Jerseyans will likely have to wait until November to see fuller judicial benches.

Gov. Phil Murphy (D) and Senate President Nicholas Scutari (D) both touted in emailed statements the number of judges they’ve confirmed in recent years and said further nominations are in the works.

The Senate has confirmed 71 lower court judges in the current legislative session, which ends in December, Senate majority spokeswoman Katharine Burnham said. Murphy has confirmed 79 judges in the last 18 months, significantly above historical averages, his spokeswoman Natalie Hamilton said. The governor’s office declined to comment when asked about any long-term plans to get more judges nominated and confirmed.

State Sen. Jon M. Bramnick, the leading Republican on the Senate Judiciary Committee, defended the courtesy process. Getting buy-in from senators increases the scrutiny of nominees, raising the quality of judges across the state, he said.

Still, New Jersey is facing a “judicial crisis” and more needs to be done by leadership to resolve disputes over judicial confirmations, he said, although he acknowledged that there is no simple fix.

“You get three engineers in the room and they can agree on the formula. That’s not the same with politicians,” he said. “New Jersey politics can be a little bit more complicated than rocket science.”