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Options when faced with divorce

by Gary L. Borger

Divorce sometimes comes as a shock and sometimes as a mutual decision. In any event, it is usually a first for most married couples facing this crisis. Questions will flood your mind:  What do I do next? To whom should I turn? Who can I trust?

Meeting with a lawyer is inevitable but which one? Usually friends, relatives, and co-workers will make suggestions. Sometimes the suggestions are good; sometimes they’re not. Always check the lawyers’ web sites first. Do they seem to concentrate in family law issues such as divorce or do they have a general practice? Those who concentrate in family law will usually have the most knowledge and experience with divorce. Does the web site exude confidence? Is it inviting?

Most attorneys charge a flat fee for the initial divorce consultation. That gives you the freedom to get all of your questions answered without watching the clock as dollars tick by. The initial consultation allows you–and the attorney–to size up and feel out each other. Does this seem like a good fit for me? Does the lawyer seem to care about me or am I “just another case?” Will the lawyer handle my case or shunt it off to a younger, less-experienced associate (not always a bad thing–if your income and assets are limited, you don’t need the most senior and experienced lawyer in the firm)?

What happens next? The lawyer should tell you your options, basically:

  1. You and your spouse can try to resolve as much as you can on your own, saving legal fees and limiting contention to what is really in dispute;
  2. You and your spouse can work with a mediator to help you resolve things directly with the mediator’s help;
  3. You and your spouse can retain lawyers trained in collaborative divorce and work together as a group, collaboratively, with a divorce coach and a neutral financial expert, if needed, instead of the lawyers working against each other, adversarily;
  4. You can have your lawyer handle all negotiations with your spouse’s attorney, once he or she retains one; or
  5. You can have your lawyer file for divorce and serve the filed divorce complaint and a summons on your spouse, starting the divorce litigation process in court.

If you want to conserve your money spent on legal fees, if you want to have a respectful and civil relationship with your spouse after you are divorced (especially where children are involved), I strongly urge you to consider #1-3 above.

Due to high emotions such as anger, resentment, feelings of betrayal, etc., #1 often is not a viable option.

If your spouse is not likely to be honest about finances and has a greater knowledge than you of income, assets, debts, and living expenses, #1 & 2 may not work and even #3 may not be successful.

If #1-3 are not viable for you, understand that less than 2% of all divorces filed in court actually go to trial; the other 98+% settle at some point prior to a trial commencing. In such case, your attorney will serve as your surrogate, to do his or her best to negotiate settlement terms with your spouse’s attorney. Whether settlement efforts are successful depends on many factors, the most significant being how you and your spouse are reacting to efforts at settlement and who you and who your spouse each has chosen for an attorney (as some attorneys are more settlement-oriented and others more litigious for many reasons).

Just remember:  Try not to allow your emotions to waste your resources by fighting with your spouse where fighting can be avoided and keep your eye on the goal of reaching a long-term, viable and durable settlement that meets your most important needs and keeps as civil a relationship with your spouse as you can maintain or recreate so your children don’t suffer, worrying about how each of you will act when you’re together at their school events, bar or bat mitzvot, graduations, weddings, baptisms, and at and after the birth of grandchildren.

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Social Media And Divorce

by:  Deena L. Betze, Esq.

With the recent media storm surrounding the hacking of cheating website, Ashley Madison, and the release of thousands of e-mail addresses and information on users of that site, our attention is once again focused on the internet and how social media affects divorcing couples. Like it or not, social networking has become a daily part of our society. It seems we cannot go anywhere without someone tagging us in a post, tweeting about it, or “checking us in” on FaceBook or Instagram. I am old-school enough to still be shocked and somewhat appalled when someone tries to post my location while I’m out to dinner.

As attorneys, we have become painfully aware of the fact that once something is posted on a social network such as Facebook or Twitter, it cannot be permanently erased, even if deleted. Communications between attorney and client are confidential and should not be shared. Should a client reveal a confidential communication from their attorney on a social network, e-mail or other form of communication, that privilege would be lost.

It has become commonplace to post or tweet about every event, thought, feeling or mood change and it can be difficult to break those habits and walk away from the warm feeling of connectivity, even when failing to do so could be detrimental. Social media, in many cases, has replaced actual social interaction. Emotions run strong in divorce and family disputes. That is a time when people reach out to their social circle for support when they need it most. But doing so on line can have harmful results. While it is tempting to vent about one’s feelings, or post snarky memes or sayings about the opposite sex or relationships, I caution my clients never to do so. The same goes for posting pictures and updates about their new relationships.

This may sound like simple, common sense advice, but we are all probably guilty of sometimes posting updates without giving it a second thought. Not only are such posts permanently available for any crafty investigator or angry ex spouse/partner to dig up and use in court proceedings, but children, spouses/partners or others who may be hurt or misconstrue the posting can view them as well.

For years I have been warning my clients not to hit the “send” button on that late night text or e-mail to their former spouse or partner. Now I caution my clients to close down their FaceBook, Instagram and Twitter accounts during family court proceedings. Few actually follow this advice, and often it is just too tempting to post something related to their dispute or litigation that ultimately will be used against them. Divorced or separated parties should be cautious never to post comments about their divorce, their spouse, a new partner, or any aspect of the proceedings on social networks, as those comments cannot be kept private and could ultimately be used against them in the litigation. Lawyers need to take the same advice and refrain from posting about specific cases, parties or adversaries on line, as that can be a serious breach of ethics. I recommend that parties simply not utilize social networks or even e-mail to share any details of their marital situation or divorce proceedings, especially those details that they would not want a judge, their ex, or their children, to see.

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Children And New Partners- The Court Weighs In

by:  Deena L. Betze, Esquire

The issue of when or how divorced parents may introduce new, significant others to the children and what input the other parent may have in that decision is a thorny one. Until recently, the only decision on point was the 1976 case of DeVita v. DeVita, 145 N.J. Super. 120 (App. Div. 1976), which upheld a restriction banning a father from having his female companion spend the night during his parenting time. The phrase, “DeVita restriction” was coined to describe the ability for family courts to limit or restrict the amount of exposure or contact children can have with the significant other of their divorced parents that resulted.

In Mantle v. Mantle, 20-4-7530, the Hon. Lawrence Jones, J.S.C. of Ocean County Superior Court recently addressed this issue in the context of our more modern society. In Mantle, the court found that the DeVita decision does not specifically mean that exposure to a parent’s new dating partner is per se inappropriate or harmful to the child’s welfare, but rather, that such matters must be looked at on a case by case basis. Absent any evidence of inappropriate conduct by a dating partner toward the child, an indefinite “no-contact” provision would not be held enforceable. In that particular case, the court established a one-year transitional schedule for the gradual introduction of the significant other to the child.

In holding indefinite “DeVita restrictions” unenforceable without evidence of harmful conduct toward the child, Judge Jones pondered the social viability of such open-ended restrictions in today’s society. The court did not rule out short-term restrictions designed to protect the child, but rather, placed the focus on the best interests of the child in terms of gradually introducing them to a parent’s new partner. Judge Jones noted that in 1976, societal values were very different than they are in 2015 and it was a commonly held belief that exposure to such visits could harm the “moral welfare” of a child. But, such views are not necessarily shared by a majority of the community today. According to the court, “Sociologically speaking, 1976 was a million years ago. Given the overwhelming number of couples from all walks of life who presently live together full-time without the benefit of marriage, the landscape has changed drastically since the long gone days of the bicentennial.”

To balance the need to protect the emotional welfare of children and also realistically approach today’s societal norms, the court set forth factors to be considered when a “DeVita restraint” is sought, including how long the parties have been separated (living apart), the age of the child in question, how long the parent and new partner have been dating, whether that partner is already known to the child, and whether the child has an existing psychological or emotional issue that might require special consideration. In the event a dating partner presents a threat to a child through inappropriate actions, a blanket restriction against contact may still be appropriate. In any case, the focus should always remain on what is in the best interests of the child.

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NJ Supreme Court on Awarding Alimony in NJ-Nothing New!

By:  Bruce P. Matez, Esquire

The New Jersey Supreme Court has done nothing more than reiterate that the length of a marriage is only ONE of 13 factors which the court must consider in awarding alimony in NJ.  In Gnall v. Gnall, the Supreme Court reversed the decision of the Appellate Division, which had reversed the decision of the trial court.  The trial court awarded Ms. Gnall alimony for 11 years after a 15 year marriage. She appealed.  The Appellate Division reversed and found that the judge abused his discretion by not granting permanent alimony (pursuant to the prior law), that a 15 year marriage was considered “long term.” That decision was appealed to the Supreme Court.  Justice Fernandez-Vina, writing for a unanimous court, stated that the length of a marriage cannot be the only determining factor and should not weigh more heavily in the court’s determination than the other 12 statutory factors.  “Therefore, we find that the trial court improperly weighed duration over the other statutorily defined factors in determining a long-term marriage must be 25 years or more.”  The case was remanded to the trial court for a more thorough analysis of the statutory factors.  The new alimony law which was passed in September 2015 more specifically sets time frames for limited duration and open durational alimony as well as eliminated “permanent” alimony as an option.  However, the new law does not define the appropriate duration of limited duration alimony other than to say it cannot exceed the length of the marriage for a marriage of 20 years or less. That duration is still left to the discretion of the court.  Therefore, the court will still have to analyze the statutory factors in determining the duration of  limited duration alimony awards under the new law.

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Child Support Agreements Not Always Enforceable

By:  Bruce P. Matez, Esquire

In the recent case Cosco v. Cosco the Appellate Division of the Superior Court of New Jersey determined that an agreement between divorced parents to terminate child support when their child attains the age of 18 is not enforceable if the child in question remains un-emancipated (in that case, the child is attending college full-time). The court relied upon case law which holds that child support is the right of the child and may not be waived or abrogated by the parents. Children who attend college on a full time basis after high school after reaching 18 years of age are entitled to the financial support of both of their parents even if their parents agree otherwise. There are six states, D.C., Puerto Rico and the Virgin Islands which require parents to financially support their children beyond reaching the age of majority and graduation from high school; New Jersey, Georgia, Hawaii, Massachusetts, Mississippi and Oregon. All others require the termination of child support at age 18 or upon graduation from high school in general, although there are few exceptions and most do not require any support after the age of 19 (in some states 21 in exceptional circumstances). This case clearly and unequivocally denies divorced or never-married parents the ability to negotiate between them how long they will be obligated to financially support their children, whereas married parents can cut-off support of their children at age 18 at their discretion. Currently, the law in New Jersey also requires that divorced or never-married parents contribute to their children’s college education expenses, a requirement that does not currently exist for married parents.