By nature, divorce can be, at best, a difficult and expensive process. From the inherent emotionality of child custody and relocation, to the complexities associated with the distribution of assets and spousal support, the legal costs of dissolving the marriage can leave each party with a fraction of the marital estate they created. Litigation costs for divorce can spiral and balloon, leaving parents no choice but to tap into the college funds intended for their children’s education, unexpectedly burdening children. Factor in time delays and the bureaucracy of the court system itself, the prospect can rapidly escalate from intimidating to outright daunting. Fortunately, less intimidating, less expensive, and less time-consuming disputeresolution options are rapidly integrating into the mainstay of family law. Alternatives for “going to court” exist. Utilizing them can reduce costs, time, and family friction and preserve the marital estate for the post-divorce phase of life. This blog post will focus on Early Neutral Evaluation as an alternative to court.

Testing the Waters with Early Neutral Evaluation: An Alternative Approach to Resolution

Procedurally, early neutral evaluation (ENE) falls somewhere between mediation and arbitration. As in mediation and arbitration, a neutral third-party expert in the field of family law, usually a lawyer, is hired. A key difference between ENE and mediation is that in ENE the neutral provides his opinion and feedback in the form of an unbiased evaluation of the case; and unlike arbitration, the evaluator’s assessment of the case is not binding.

In this adversarial process, each party’s lawyer will submit to the evaluator, in writing or in person, their arguments and the documentation to support their client’s claims and positions. The evaluator will assess the case based upon the lawyers’ submissions and render an opinion as to the disputed issues such as the division of assets, liabilities, value of real estate or businesses, and the amount and duration of alimony. ENE is also used in custody cases to gain a neutral perspective of what the trial court might do when faced with the issues and evidence presented.

ENE is not binding but is used as a reality check of the strengths and weaknesses of each party’s case. Although settlement is not the goal, ENE can be an effective settlement tool, enabling the parties to reach an agreement based upon the evaluator’s assessment. Unlike mediation, counsel is present to protect each party’s interests and to advocate their positions. The evaluator does not have the authority to make the final decision; and, therefore, the right to have the matter heard by the court remains, along with the preservation of appellate rights. 

Cost Considerations

ENE is considerably more efficient, and, therefore, cost effective than navigating the court system, if the case settles. If the case does not settle, then ENE becomes an added cost to the already substantial cost of litigation. The efficiency of ENE lies in the fact that it takes place in a private office at a scheduled time, in contrast to the waiting that is inherent to the court system, during which clients are obligated to pay for their lawyers’ time. 

Disputes among separating or divorcing couples are inevitable. However, relying upon the court system for resolution of these disputes brings with it other problems; namely, excessive costs due to the inherent inefficiencies of court processes. Clearly, as conflict increases, so does cost; but the family law landscape provides options to manage both. Parties can avail themselves of alternatives to “going to court,” as discussed previously, so long as spouses and their respective lawyers keep an open mind to creative solutions. Choosing an attorney who will embrace and encourage these alternatives can be as important as selecting the most appropriate process for the couple’s dynamic and finances. Divorce should not dissipate the marital estate. Fortunately, time- and cost-reducing options are available that can preserve the assets accumulated during the marriage and upon which the parties will need to rely after divorce.

This post is part of the blog series “Choosing Your Approach to Resolution”.

To explore the other topics in this series, view these blog posts (coming soon!):
Mediation – Giving Peace a Chance
Arbitration – Select Your Judge for Final Resolution
Collaborative Divorce – Keep out of Court
Cooperative Divorce – Keep Options Open

If you would like to explore your alternative resolution options, you should speak with an experienced West Chester attorney. At Potts, Shoemaker, and Grossman, LLC, our attorneys are prepared to assist you in finding the appropriate resolution approach for your individual situation. To schedule a confidential consultation, contact us at (610) 840-2626.

*This blog post is an excerpt from the article “Choosing Your Approach to Resolution” as published in Family Advocate, Volume 43, Number 1, Summer 2020 as written by Rochelle “Shelly” Grossman, Esquire.