Entries by Bruce Matez

“A Marriage Story” – An ugly and accurate depiction of divorce litigation.

By Bruce Matez, Esq.

I wrote the following article several years ago and was reminded of it again while watching the moving “A Marriage Story.” Watching Laura Dern’s character (Nora) manipulate Scarlett Johansson’s character (Nicole) was extremely uncomfortable. She exhibited a trait that I have, unfortunately, witnessed of colleagues throughout my career, maternalism/paternalism. All too often, divorce lawyers take a paternalistic/maternalistic approach toward their clients and act as if they know what is best for their clients. Nora never really listened to Nicole, she heard bits and pieces of what she was saying and took control; she decided what she believed was best for her instead of listening to her needs, wants, desires, goals and interests, she told her what to think, how to think, what to do, and how to act. In mediation and the collaborative divorce process, divorcing spouses have the opportunity to express their goals, interests, desires, and fears openly and in a safe environment.

Oscar Wilde said “Life imitates art more often than art imitates life.”

In this film art very much imitates life; it depicts a true and accurate litigated divorce with ONE major exception, the main characters in the movie had a relatively typical “Hollywood ending.” While Nora and Charlie did not reconcile, the ending certainly portrayed them as having a mutually caring and respectful relationship in the end and living peaceful, happy lives. In real life, however, divorced couples who litigate like Nora and Charlie, typically end up hating each other, being incredibly hurt by and angry with each other, live far from peaceful/happy lives, and often continue to battle with each other post-divorce. Relationships with the other’s extended family become strained or terminated. Children become the victims in their parents’ anger and hatred toward each other and their battle for control. “A Marriage Story” is a wonderfully strong advertisement and motivation for mediation or the collaborative process.

When Zeal Turns into Zealotry, Everyone Loses

By Bruce Matez, Esq.
Originally published in the February edition of The Barrister (Camden County Bar Association)

This past summer, my rabbi (a former attorney) delivered a stirring and compelling sermon about the difference between zeal and zealotry, and what happens when people turn their zeal for a cause into zealotry. As I listened, it occurred to me that what she was saying had relevance to the practice of law in general, and specifically the practice of family law. I could not help but think of some unfortunate situations wherein an adversary allowed zealous advocacy to become zealotry.

Many of us remember studying “professional conduct” and “ethics governing lawyers” in law school, where it was drummed into our heads that we have an obligation to zealously represent our clients, while conforming to the Rules of Professional Conduct. It may be surprising to discover the “zeal” requirement many of us learned is no longer found in the ABA Model Rules of Professional Conduct or the New Jersey Rules of Professional Conduct. Despite the elimination of “zeal” from the rules governing our ethical conduct, many family law attorneys continue to recognize the obligation to zealously represent our clients. However, many of us have unfortunately witnessed and experienced an adversary turn “zeal” into “zealotry” in too many cases. Zealous advocacy is appropriate, professional, and often necessary, whereas zealotry is harmful to clients and their families, has a detrimental effect upon the way people perceive attorneys in general, and can have a devastating impact on our judicial system. Zealotry in the practice of family law is destructive and counterproductive, causes a breakdown in civility and collegiality among attorneys and completely unnecessary.

According to the Merriam-Webster Dictionary, the definition of “zeal” is a strong feeling of interest and enthusiasm which makes one eager or determined to do something; or “eagerness and ardent interest in pursuit of something.” Synonyms of zeal and zealous include passion, fervor, fire, gusto, vigor, and intensity.

Zealotry is defined as “the excess of zeal; fanatical devotion.” Synonyms of a zealot include are: crusader, fanatic, and militant partisan.

Family Law practitioners should be eager and ardent in providing representation to our clients. We owe clients our interest and enthusiasm in addressing their legal concerns. However, family law attorneys should take care not to become zealots in their effort to be zealous. It has been my experience that zealotry, the “excess of zeal” and “fanatical devotion” in family law cases, exponentially increases legal fees, adds unnecessary and unprofessional stress between attorneys, aggravates already tense and difficult situations, causes existing rifts between parties to widen and become irreparable, and destroys relationships, with a resultant negative impact on children, grandchildren, new significant others, friends, and family. Zealotry in the practice of family law leads to unprofessional, uncivil, non-collegial conduct among attorneys, and ultimately increases all of our receivables.

Our judiciary needs to be trained to properly and adequately handle and discipline those attorneys who cross the line, who behave unprofessionally, without civility and collegiality, and, in a word, become zealots. Zealotry is often found in letters from an adversary, briefs, certifications, and statements made on the record. I question and am disturbed by any unwillingness to take action to stop zealotry in the practice of family law. Judges are in the best position to require counsel to act with professionalism and cease zealotry.

While our Rules of Professional Conduct no longer require zealous advocacy, we should all strive to represent our clients with passion, devotion, enthusiasm and eagerness, and avoid assuming the role of crusader, fanatic, or militant partisan. Professionalism still suggests we be zealous advocates, but refrain from becoming zealots. When we all do so, the practice of family law, our clients, and our noble profession are all better served.

“Rules Of Thumb” Have No Place In Divorce and Family Law Mediation

By:  Bruce P. Matez, Esquire

NJAPM Accredited Mediator
APFM Certified Advanced Practitioner

For many years, judges, lawyers and mediators have referred to a fictional “rule of thumb” for determining alimony. In mediations, many clients have told me that their lawyer said this is the way alimony is calculated. In recent years, there has been a great deal of discussion about a new “rule of thumb” for calculating alimony now that alimony is no longer taxable. CLE presenters generally begin presentations on this topic with a disclaimer that there is no case, statute, or rule which establishes a formula for calculating alimony. Yet, it seems that everyone in the family law community, including mediators, is looking for that formula.

Let’s be clear; there is NO “rule of thumb” for calculating alimony. A “rule of thumb”, is a legal fiction created by lawyers to find a simpler way of addressing a complicated issue. While I understand that it provides for an easy answer, mediation clients can easily become attached to it, which in turn stifles discussion. Judges are prohibited from applying a “rule of thumb”; they are required to analyze the statutory factors, as should lawyers and mediators.

The Family Law Executive Committee (“FLEC”) of the New Jersey State Bar Association carefully and thoughtfully collaborated with the legislature to revise the alimony statute. Various formulas for calculating alimony were proposed, considered, and thoroughly vetted. Those that worked diligently on this issue spent countless hours reviewing alimony statutes and formulas from other states and debated the concept of promulgating alimony guidelines similar to child support guidelines. Ultimately, it was the position of the FLEC, and the decision of the New Jersey Legislature, NOT to include a specific formula nor guidelines for calculating alimony in the revised alimony statute. Instead, it was determined that every alimony determination must be addressed on its own merits, based on individual facts and circumstances, and by way of an appropriate analysis of the statutory factors.

The proposed new alimony “rule of thumb” completely avoids any appropriate analysis of the parties’ needs, marital lifestyle, and the other statutory factors as well as discussion of the parties’ financial circumstances, budgets, etc., and gives them a false sense of entitlement and obligation, and stifles discussion. It is also contrary to legislative intent.

In addition to the new alimony “rule of thumb” that is being bantered about, there appears to be a default “rule of thumb”, or presumption, of a 50/50 distribution of marital assets. This is also a legal fiction, as there is no statute or case law which supports this “rule” or presumption either.

In my opinion, “rules of thumb” are inappropriate for use in divorce and family law mediation and are the antithesis of what mediation is and should be. We owe a duty to our mediation clients to do better than mechanically apply “rules of thumb” or to tell them that they exist. That is not what I was taught mediation is supposed to be. I was taught that divorce mediation is a process which promotes spouses to discuss their mutual, individual, and family’s goals, interests, and needs, and determine how to appropriately and fairly allocate their overall net income, and distribute their assets, as they deem fair, in their opinion. If we, as mediators, promote a “rule of thumb” for calculating alimony, a similar one or a presumption for equitable distribution, and apply child support guidelines mechanically, divorcing couples will no longer need mediators to assist them in addressing these financial issues; they will be able go online or otherwise simply do it themselves.

1 Aside from the division of a business interest.

2019 Nonprofit Stars

By:  Bruce P. Matez, Esquire BorgerMatez congratulates BetterWayDivorce (South Jersey Collaborative Divorce Professionals) for being featured among the 2019 Nonprofit Stars by South Jersey Biz. The South Jersey Collaborative Divorce Professionals, now known as BetterWayDivorce, is one of 18 nonprofit organizations featured by the South Jersey Biz for their efforts in providing support and resources […]

Divorce Rates And Why Living Together Could Increase Chances Of Ending Up In Family Court

According to the U.S. Centers for Disease Control and Prevention 1, divorce rates in New Jersey are among the lowest nationwide. With the exception of people over the age of 50, who are getting divorced more often than younger couples, divorce rates in New Jersey have continued to drop over the last five years. 2 Overall, statistics reveal that divorce rates have declined over the past 10 years or so, but still almost 40% of all marriages end in divorce.

divorce rates

Why Divorce Rates Are On The Decline

On the surface the declining divorce rates can be deceiving considering the number of young adults who are choosing to live together rather than tying the knot. More and more people are cohabiting (living together in lieu of marrying).3

Cohabitation without getting married and the rate of births between non-married people is on the rise. According to a study by Gallup, only 16% of 18 to 29-year-olds were married. 64% of that age group remained single.4 Studies cite a number of reasons for this including people waiting longer to marry, and a decline in the rate of marriages.

According to a recent study on divorce rates by Philip N. Cohen of the University of Maryland, millennials wait longer to get married, and are more established and stable when they do, leading to fewer divorce risks.

The following chart illustrates how divorce rates gradually decline for millennial’s who wait longer to get married. 5


Familyinequality.wordpress.com


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The Pew Research Center reports that the number of cohabiting partners has increased 29% since 2007. The Pew Research Center last year found that one-in-four parents living with a child in the United States today are unmarried (25%), marking a dramatic change from a half-century ago, when fewer than one-in-ten parents living with their children were unmarried (7%).6


Image from Pew Trends

Why More People Are Waiting To Get Married Or Not Marrying At All

While many young adults cite economic reasons for not getting hitched, another reason seems to be a reflection of new and evolving attitudes regarding traditional marriage. Many young people say their hesitation has more to do with holding onto their freedom and a desire to avoid the complications of traditional marriage. They want to keep their options open.

The Unexpected Risks Of Living Together

Those who choose cohabitation versus getting married, because they want to avoid the complications of marriage, may find that the grass isn’t always greener on the “living together” side of the fence.

Family law disputes and divorce are a fact of life and touch virtually every human being in some way. In fact, it can be argued that people who live together are at a greater risk of facing family law litigation.

The University of Maryland study by Philip N. Cohen found that waiting to get married could lead to fewer divorce risks, but what about those who live together before getting married or those who live together and never get married?

Studies have found that “living together” or cohabitation relationships tend to be less stable and more often end a breakup than marriage.7  And that’s really not surprising.

What is surprising is the data which indicates an increased chance of divorce when couples cohabit before getting married.

Research conducted by the Institute For Family Studies indicates that those who do live together prior to getting married are actually at a higher risk of divorce than those who did not cohabit. 8 This is explained by what is referred to as the inertia of cohabitation.

According to Dr. Scott Stanley,

“This idea of inertia is based on the fact that many people increase their constraints for staying in a relationship before they have clarified a mutual dedication to being in the relationship.” 9

The premise is that when people are sharing an address they get caught up in an inertia that makes it harder to break up. This inertia increases the likelihood they will get married to someone they might not have married had they not been living together.

Family Law Complications Faced By Cohabiting Couples Who Break-Up

One of the major problems with “uncoupling” when a couple is not married is the lack of applicable laws in New Jersey to address the various issues which are otherwise applicable to divorcing couples. New Jersey common-law marriage was abolished by statute in 1939. Without common-law marriage in New Jersey, it’s not always clear what rights unmarried couples have when they have been living together for an extended period of time.

Considering the increasing number of people who are cohabiting without getting married, the New Jersey courts do recognize that in certain situations an unmarried person may have the right to financial support from a partner after the relationship has ended.

Palimony is financial support that an unmarried person can request from their partner after separating. For a palimony claim to be enforceable, a cohabitation agreement must exit between the parties. The cohabitation or palimony agreement, must be in writing, must be signed by the party promising to provide financial support, and both parties must have received advice from separate attorneys before entering into the agreement.

Married couples and those who cohabit (live together) face issues like custody, parenting time, support issues, distribution of property, tax issues, insurance issues, and more every day.

The traditional litigation method of addressing these divorce and family law issues is expensive, ineffective, outdated, and not healthy for the participants; and sometimes there is not an adequate law to address a particular issue.

The Good News

The good news is that there are viable alternatives such as mediation and collaborative law/divorce available to couples. I have 30 years of experience in divorce and family law and have witnessed the damage the traditional litigation approach has had on families and children. My practice is now focused on using alternative dispute resolution methods such as mediation and collaborative law to help clients maintain better relationships in divorce or after a family law dispute, find creative and workable solutions to their issues, and create a more peaceful life for themselves and their children.


Bruce Matez Esq.
Bruce P. Matez, Esq.

Notes

1. https://www.cdc.gov/nchs/data/dvs/state-divorce-rates-90-95-99-17.pdf
2. https://nypost.com/2016/11/19/new-jersey-has-fourth-lowest-divorce-rate-in-us/
3. https://www.huffpost.com/entry/why-arent-millennials-getting-married_b_5a075620e4b0ee8ec3694209
4. https://www.popcenter.umd.edu/news/news_1415806591504
5. https://familyinequality.wordpress.com/2014/11/06/top-25-cities-for-millennial-divorce/
7. https://ifstudies.org/blog/is-living-together-all-its-cracked-up-to-be/
8. https://ifstudies.org/blog/the-complex-risks-associated-with-cohabitation
9. https://www.psychologytoday.com/us/blog/sliding-vs-deciding/201407/the-hidden-risk-cohabitation

“Splitopia”-I have that!

I was recently referred by a mental health professional to read a book called “Splitopia”. While searching for it, I came across a website established by the author, Wendy Paris. While I haven’t had a chance to read the book yet, I read her article, Happily Ever, After We Split in the NY Times. I […]

Jack Ingram Honored As Associate/Barrister of the Year

On June 18, 2019, our associate, Jack Ingram, was honored as the Associate/Barrister of the Year by the Thomas S. Forkin Family Law American Inn of Court. This award is given annually by the Inn to a member who has been in the practice of law for less than 10 years and who has made significant contributions and demonstrates dedication and commitment to the Forkin Inn of Court, the ideals and principals of the Inns of Court in general, and to the practice of family law in South Jersey. We are extremely proud of Jack.

NJAPM Annual Civil and Divorce Mediation Seminar

On Saturday, June 15th, Gary and Bruce participated in the NJAPM (New Jersey Association of Professional Mediators) Annual Civil and Divorce Mediation Seminar in Somerset, New Jersey.

The morning session was focused on building a successful mediation practice, using online services as a tool in mediations and ethical considerations of mediation.

During the afternoon session for divorce and family law, Bruce presented the case law update from the past year. The remainder of the afternoon sessions focused on parenting schedules and alimony now that it is no longer taxable under the new federal income tax code.

The Art of Forgiveness in Divorce

By:  Bruce P. Matez, Esquire I spend most of my days with couples who are divorcing in mediation sessions, clients in the process of divorcing or who are divorced and continue to have ongoing disputes with their former spouses, and with couples who are seeking alternative ways to resolve disputes.  One of the major themes […]