Gary answers some divorce law questions

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By Gary L. Borger, Esq.

“In my years as a divorce lawyer I’ve often come across the following questions” says, Gary L. Borger, Esq. “Hopefully these answers can be of immediate assistance.”

What is the difference between a contested divorce and an uncontested divorce?

An uncontested divorce is one in which all of the areas of dispute between the spouses are resolved and the task of the court is solely to grant a divorce and incorporate the parties’ agreement into the final judgment. A contested divorce is one in which there remain areas of dispute unresolved by the spouses. For example, although both parties may want the divorce, the divorce is considered contested if there are still disputes over what time the children should spend with each parent; or if the spouses have not reached a final agreement on the amount or duration of alimony; or if there remain disputes over distribution of property or debt. Contested divorces are presumed by the court system to need a trial to resolve the contested issues;” uncontested divorces are ones in which all issues” have been resolved so that only a short hearing is necessary in order for the court to dissolve the marriage and conclude the divorce proceeding.

I need to discuss certain aspects of my case. Can I call my spouse’s lawyer if mine is out of town?

The simple answer is no. An attorney is ethically prohibited from speaking with a person who is represented by an attorney, even if the other attorney is on vacation, in trial, or just is not calling the other lawyer back. Under no circumstances can an attorney speak with the other (adverse) party who is represented by an attorney, unless the spouse’s attorney is present and consents to the communication.

My ex-wife has recently married a very wealthy man. Can I now stop making child support payments?

The answer is no. A person may not stop paying child support (or alimony) unless there is consent or the court enters and order allowing him/her to do so. Child support is generally determined based upon the amount of money each parent earns or is capable of earning, the number and age of the children, the amount of time that the children spend with each parent, the cost of health insurance coverage for the children, and other factors that differ somewhat from state to state. In New Jersey a step-parent’s income is not considered in determining the amount of child support one parent pays to the other.

My partner and I have two children but were never married. How is custody and child support decided when dealing with children of unmarried parents?

Custody and child support are not determined any differently between unmarried parents than it is between married/divorcing parents. Custody (decision-making for the children and the time the children spend with each parent) is determined by the children’s best interest, i.e., which parent can provide a loving, nurturing, and supportive life for the children, providing appropriate medical and dental care, educational support, and support for the children’s extracurricular life (e.g., sports, music, dance, theater, etc.). That usually is based on history, i.e., who in the past functioned in the more active and supportive parental role and upon the work schedules and commitments of the parents and the schedules of the children. There are differences in how the factors for determining custody apply to children of different ages. Custody is not based on who earns more money, but can be based in part on who is more available to care for the children when they are not in school. Most states require parents to try to agree on a parenting plan on their own; if that is not possible, then the parents usually attempt to do so with the assistance of a mediator. Only if these attempts at resolution fail does the judge step in, and then usually only after a custody evaluation has been conducted by a psychologist, psychiatrist, social worker, family therapist or other social science trained person.

Child support is based predominantly on the incomes of the parents, the number and ages of the children, and the amount of time the children will be spending with each parent based on the parenting plan to which the parties have agreed (i.e., their consensual custody arrangement) or the parenting plan ordered by a judge). All states have adopted child support guidelines for the calculation of child support in order to make child support orders more uniform. New Jersey’s child support guidelines apply to families who have joint net (after-tax) incomes that do not exceed $187,200.00 per year ($3,600 per week after taxes).

Is it possible for a mediator to be completely neutral?

A mediator MUST be completely neutral.” That is part of the definition of a mediator. Part of a mediator’s training is to learn to be aware of emotional responses that one has while mediating that could interfere with one’s neutrality. While we are all human, and all have emotional responses to people we meet and know, a good mediator is aware of such emotional responses within him or her and does his or her best to control them so as to treat each party to the mediation in the same, fair, objective fashion.

I’ve heard that women always do worse in mediation than in the traditional process (each side hiring a lawyer). How can I be sure I won’t get ripped off?

It cannot generally be said that women do worse in mediation than they do in the traditional adversary system involving negotiations through attorneys. What is to be feared is that, if the husband has more knowledge about the financial matters of the marriage, and does not reveal sufficient documentation of the parties’ finances (assets, debts, insurance, expenses, etc.), the wife may not have enough information to make an informed, intelligent and voluntary decision as to what she feels is a fair settlement. A good mediator will insists that disclosure of the financial aspects of the case is made by each party to the extent of his or her knowledge and available documentation so that truly all cards are on the table.

Another concern arises if there is an imbalance of power, for example, where the husband is able to overpower the wife psychologically so that she gives in to his proposals for settlement that she really doesn’t feel are fair. However, a good mediator will watch for signs of such power imbalance or overreaching, and will takes steps to prevent one party from overpowering the will of the other.

A well mediated settlement is one that results in a settlement that is voluntary and knowledgeable, and should always occur after each party has consulted an independently chosen attorney.