Trials in divorce matters are kind of like the Loch Ness monster – lots of people of heard of it, but few have actually seen it.  The system is currently set up such that there are many vehicles to get people to a settlement.  Moreover, most cases should be settled.  In fact, as I have blogged in the past, the cases that often get tried are ones where one, if not both parties, are totally unreasonable and unrealistic. As noted in prior blogs,there are, however, bona fide cases that cannot be settled and must be tried.

Many judges have a pre-trial Order or letter citing requirements of things that must be done before trial.  One of the things often on the list is that counsel are supposed to confer to to see if the can reach any stipulations as to facts, and sometimes legal issues.  Court’s have noted that "stipulations serve as a tool that enables parties to avoid the expense, trouble, and delay of adducing proofs on facts that, absent a stipulation, are contestable."  Though I have one colleague that refuses to enter in to stipulations because he feels that it throws off the flow or leaves holes in his presentation, generally, stipulations are a good thing because it cuts down on what is already limited trial time. 

Courts often also require parties to confer about joint exhibits for the same reason.  Once the parties agree, the exhibits are marked and should go into evidence without the need for authentication of other testimony.  Examples of things that are commonly joint exhibits are tax returns, bank records, prior court orders and transcripts, credit card records, and the like. 

The question then is, does a trial court have to accept the stipulation, and if they don’t, what is supposed to happen.

This issue came up this week in the unreported (non-precedential) case of Hertzoff v. Hertzoff.  In that case, the parties entered in to a number of stipulations which the trial judge ignored, especially as it related to equitable distribution. 

Getting back to the questions asked above – a trial judge does not have to accept the parties’ stipulation.  In this case, the Court noted that the law is as follows:

As a general rule, "litigants should be held to their stipulations and the consequences thereof." Ibid. Nonetheless, a trial court has the authority to override a stipulation in certain circumstances:

 [I]n the rare instances in which the circumstances . . . justify the court’s              rejection of the parties’ stipulation, the party losing the benefit of  the stipulation
must still receive his day in court with respect to the stipulated issue. This
requires that the litigant who is being prejudiced by the court’s non-adherence to
the stipulation be given the same opportunity to present his proofs as he
would have received had the stipulation not been entered on the record.

So, while the court is free to reject the stipulation, the judge must let the parties know and give them an opportunity to adduce proofs regarding the issue(s) for which the stipulation(s) was rejected.  Failure to do so may result in a reversal and a new trial.