“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 am lucky that I have an ex-spouse with whom I also have a wonderful ongoing relationship that is filled with mutual caring and support. We raised our son together in divorce from about age 5 and he is now a very well adjusted, independent, successful, thriving 24 year old. There were many bumps and bruises along the way, times of dispute, anger, frustration, hurt, sadness, and so much more, but through it all, we were able to maintain a good relationship.

I consider her my friend and co-parent and I believe she considers me to be the same. She remarried, has a wonderful husband with whom I also have a good relationship, and a step-son whom she raised to be a fine young man, currently serving in the US Marine Corps. We sometimes (not often enough) get together for lunch or coffee and talk by phone once a month or so. My good relationship with my son’s mother has allowed me to have so much peace in my life. And, by the way, we never saw the inside of a courtroom! I wish this for all of my clients!

Marriage Equality- How does it affect us?

By:  Deena L. Betze, Esq.

This week, the United States Supreme Court held that the 14th Amendment of the U.S. Constitution requires states to recognize and grant marriages between same sex couples in Obergerfell, et al. v. Hodges, Director, Ohio Department of Health, et. al., recognizing marriage as a fundamental constitutional right for same sex couples as well as opposite sex couples.

How does this landmark decision affect our lives?

There are two equally correct and opposite answers to this question from my perspective:

1. Not at all:

The arguments against our nation finally recognizing marriage equality mostly revolve around the suggestion that same sex marriage somehow diminishes the sanctity of heterosexual marriage. To the contrary, the plaintiffs in Obergefell sought recognition of their unions based on their belief in the institution of marriage, as well as their need for the rights, dignities and benefits bestowed upon married couples. Far from devaluing marriage, these plaintiffs sought to honor and uphold the institution. If this has any effect at all upon heterosexual married couples, it is to support the concept of a lifelong commitment between two loving adults and promotion of the family unit that marriage represents. It does not in any way detract from the institution of marriage so many hold sacred or otherwise affect the rights or liberties that previously existed for opposite sex marriages.

2. A whole lot:

This is a fundamental civil rights issue that affects us all. Any time there is a landmark civil rights decision in this country it reminds me of how amazing our system of law and government can be, and makes me proud to be an American. This decision represents a victory for equal rights for all Americans. On this 4th of July week, I am reminded of other groundbreaking SCOTUS decisions deemed controversial in their time, which also redefined and recognized equality and civil rights, such as Loving v. Virginia, which struck down individual state’s bans on interracial marriage.

Do these musings sound strange coming from a divorce attorney?

Not at all, from my perspective, which is based on the concept that our role as family law attorneys is to help and guide our clients through one of the most difficult transitions they will face in their lifetimes, and do our best to preserve their families in the process.

As an adoption attorney, I rejoice for the many children whose families can now be complete and equal to their peers.

This decision promotes and preserves family units, equality and freedom of choice. On the eve of the 4th of July weekend, let us remember and reflect upon the freedoms, both of religion and personal choice, upon which this great country was based, and rejoice in this breakthrough decision that celebrates and upholds those principles.

Primary Custodial Parent – A Higher Duty

By:  Deena L. Betze, Esquire

My clients with children are often faced with a barrage of custody and parenting terms that are ambiguous, confusing, and sometimes meaningless to them. Joint custody, sole custody, shared parenting, primary physical custody, joint legal custody… In most instances, their real concern is protecting their children from the damage that can be inflicted upon them by a contentious divorce and traumatic transition when their parents separate. First, a quick primer on some of the terms used in New Jersey custody and parenting time matters:

• Joint Legal Custody: the parents consult and attempt to agree on major decisions affecting the health, education and welfare of the children.
• Sole Legal Custody: one parent has the ability to make major decisions affecting the children’s health, education and welfare.
• Parenting Time: the time a child spends in the care of a parent.
• Shared Parenting: generally, this is an equal or close to equal parenting time arrangement, with the child spending approximately the same amount of time with each parent.
• Joint Physical Custody: the children spend time living with both of their parents.
• Sole Physical Custody: the children reside only with one parent.
• Primary Physical Custody: the parent with whom the children reside most of the time and have their official address is the primary custodial parent.

In many cases, although the parties share joint legal custody, one parent is designated as the parent of primary residence. The children reside with that parent and have parenting time with the other parent. I try very hard to educate my clients on what I call the “higher duty” of the primary custodial parent to foster and encourage the children’s relationship with the other parent, which they are in a uniquely powerful position to influence. I give all of my clients with children a copy of the “Children’s Bill of Rights” promulgated by the New Jersey Superior Court and reprinted below:

CHILDREN’S BILL OF RIGHTS

1. The right not to be asked to choose sides between their parents.

2. The right not to be told the details of a bitter, nasty divorce.

3. The right not to be told bad things about the other parent’s personality or character.

4. The right to privacy when talking to either parent on the telephone.

5. The right not to be cross-examined by one parent after visiting or talking with the other.

6. The right not to be asked to be a messenger from one parent to the other.

7. The right not to be asked by one parent to tell the other parent untruths.

8. The right not to be used as a confidante regarding the divorce proceedings by one parent or the other.

9. The right to express feelings, whatever those feelings may be.

10. The right to choose not to express certain feelings.

11. The right to be protected from parental warfare.

12. The right not to be made to feel guilty for loving both parents.

I cannot stress strongly enough how important it is for a parent to abide by these rules—even (and often, especially) if the other parent is not. Moreover, I tell my clients who are primary custodians that they have a responsibility to encourage their children’s relationship with the other parent and to ensure that they feel comfortable expressing their love of the other parent without fear of being disloyal to the parent with whom they live.

I tell my clients all the time that their child’s mother and father are each a part of them and tied into their identity. Making disparaging remarks about a child’s other parent is perceived by that child as a personal attack on them and can be internalized. “If my Dad is stupid, I must be stupid too.” The way the custodial parent talks about and treats their children’s other parent is observed very closely and often modeled by the children. If you want your children to be confident, respectful adults, you must treat their other parent with respect and respect the importance of their time with your children and their role in your children’s lives. Remember, all things being natural, you are going to have to have a relationship with your child’s other parent for the rest of your life. It will be nicer for everyone, especially your children, if that relationship is based upon mutual respect.

It is also important to make the time children spend with their other parent as routine and non-negotiable as possible. I often remind parents that they do not negotiate whether their children attend school, soccer practice or piano lessons. Time with their other parent should be the same. This will have the added benefit of making a child feel more relaxed about transitioning between homes.

In every divorce I have handled involving children, my clients, without fail, tell me that safeguarding their children from the trauma and damage divorce can cause is the most important goal they have. I tell them that if that is the case, they must do everything they can to make their children feel safe expressing their love for the other parent, which often means putting aside their own emotional frustrations. Doing so will go a long way toward minimizing the negative impact separation and divorce can have on a child. The parent with whom the children live is by far the most influential person in their lives and has a higher duty to ensure the children have a healthy relationship with the non-custodial parent.

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.

Why adopt in New Jersey?

By Deena Betze, Esq.

New Jersey is known nationally as an “adoption friendly” state. Families from all over the country come to New Jersey adoption agencies to place and adopt their children in this state. Why is New Jersey considered one of the best places to adopt? New Jersey statutes, case law and public policy all favor adoption and the best interests of the child. The best interest of the child is the standard by which New Jersey courts must base all adoption decisions. Thus, New Jersey laws strive to promote finality of family arrangements for the child being placed for adoption.

That policy translates to a more “user friendly” and streamlined process for prospective adoptive parents. In New Jersey, if a birth mother signs a surrender of her parental rights from an approved agency at least 72 hours after the birth of the child, that surrender of parental rights and consent to adoption is irrevocable. There is no waiting period during which she could change her mind. The only way to contest an agency surrender is to prove duress, misrepresentation or fraud on the part of the agency in taking the surrender. State approved agencies are under the strict supervision of the state and are closely regulated and monitored. Of course, it is always important to make sure the agency you are working with is licensed, state approved and in good standing. If you are adopting internationally, you should know whether the agency you are working with is Hague accredited.

In addition, birth mothers in New Jersey are not required to name or identify the birth father. The adoption agency must attempt to undertake a diligent inquiry to identify and notify the biological father, unless they cannot because the birth mother refuses or is unable to identify him. If an identified birth father is notified of the proposed adoption and does not respond to the agency’s notification, or if the agency is unable to identify or locate a birth father, the birth father has an affirmative obligation to assert his parental rights; if he fails to assert his rights, he will lose his opportunity to contest the adoption. If, within 120 days of the birth of the child, the biological father does not seek to amend the birth certificate to add his name, or attempt to establish his paternity by filing a complaint with the Surrogate’s Office, he will not receive any further notice of the adoption proceedings. In those circumstances, when the complaint for adoption is filed by the adoptive parents, they are not required to serve the birth father. In other words, if the biological father does not take specific steps to assert his parental rights within the first four months of the child’s life, his parental rights may be terminated without his participation in the adoption proceedings. In many cases like that, it is no longer necessary to pursue separate termination proceedings against the biological father, which are still required in many states.

Finally, while there are still many states which discriminate against parents wishing to adopt based upon marital status or sexual orientation, no such discrimination exists in New Jersey. There are no restrictions on who may adopt in New Jersey based upon gender, marital status, or sexual orientation. In New Jersey, not only can married couples adopt children, but also gay and lesbian couples, as well as single parents.

An attorney’s role in New Jersey really does not begin until after a child has been placed for adoption, at which time, certain statutory requirements and timelines must be met before the adoption complaint can be filed. These requirements differ depending on whether the child was placed through an approved agency or through a private placement. They will be detailed in a future article. If you are interested in learning more about agency adoptions in New Jersey, here are some helpful links:

  1. http://www.jointcouncil.org/
  2. http://www.goldencradle.org
  3. http://www.irs.gov/taxtopics/tc607.html

New Jersey is an adoption friendly state, with adoption laws that focus on the best interests of the child, open to all adults interested in adopting children born in any state or in some foreign countries.

Can a domestic violence restraining order be vacated or dismissed? You bet it can!

By Bruce Matez, Esq.

October is Domestic Violence Awareness Month. While a great deal of attention is focused on victims of domestic violence (and rightly so), there is very little attention upon the process for vacating a restraining order in New Jersey after parties have moved on with their lives in many ways and there is no longer a threat of violence.

Domestic violence final restraining orders entered in New Jersey are permanent. While in most other states, they are reviewable, renewable, or self-terminating after a certain period of time, in New Jersey they can only be dismissed or terminated upon an application to the court. The defendant (person against whom the restraining order was entered) must make an application (called a motion) to the Family Court seeking to have the restraining order vacated. These applications are commonly known now as requests for a Carfagno hearing, named after the 1995 case in which the New Jersey Supreme Court set forth the factors to be considered in determining whether such restraining orders should be vacated. There is also a statutory basis for such applications at N.J.S.A. 2C:25-29(d).

In Carfagno v. Carfagno, 288 N.J. Super., 424 (1995) the Supreme Court of New Jersey stated,

‘Generally, a court may dissolve an injunction where there is “a change of circumstances [whereby] the continued enforcement of the injunctive process would be inequitable, oppressive, or unjust, or in contravention of the policy of the law.” Johnson & Johnson v. Weissbard, 11 N.J. 552,555 (1953). Id. at 433-434.’

The Supreme Court’s decision in Carfagno established the factors that the trial court must consider when deciding whether good cause exists to dissolve the final restraints entered pursuant to the Act for the Prevention of Domestic Violence.

  1. whether the victim consented to lift the restraining order;
  2. whether the victim fears the defendant;
  3. the nature of the relationship between the parties today;
  4. the number of times that the defendant has been convicted of contempt for violating the order;
  5. whether the defendant has a continuing involvement with drug or alcohol abuse;
  6. whether the defendant has been involved in other violent acts with other persons;
  7. whether the defendant has engaged in counseling;
  8. the age and health of the defendant;
  9. whether the victim is acting in good faith when opposing the defendant’s request;
  10. whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
  11. any other factors deemed relevant by the court.

If the defendant makes a basic showing in the application that there is a basis for the hearing, the court will grant a hearing at which the parties will have the right to testify, present other witnesses, cross examine witnesses, and present appropriate documentary evidence. This is the Carfagno hearing.

While most of the factors set forth in Carfagno are relatively straightforward and fact sensitive, it is likely that the judge is going to focus most heavily on factor (2), “whether the victim fears the defendant.” The judge, in the Carfagno case, spent significant time discussing the issue of whether to test the victim’s alleged fear of the defendant objectively or subjectively. In concluding that an objective standard must be used, the Carfagno court reasoned as follows:

The Legislature provided that final restraining orders may be dissolved upon good cause shown. N.J.S.A. 2C:25-29(d). The Legislature did not state that permission of the victim is required before the court can dissolve a final restraining order. Essentially, if the court were to consider only subjective fear, it would be merely determining whether the victim consented to dissolving the final restraining order without considering other relevant information. This is not what the Legislature intended because this interpretation would render the “good cause shown” language inoperative. Thus, the courts must consider objective fear–not subjective fear. Id. at 437.

An objective standard requires the court to determine “would a reasonable victim similarly situated have fear of the defendant under the circumstances” Id. at 438.

I recently was successful in having two domestic violence restraining orders vacated. In one case the victim decided to consent and allow the restraining order to be vacated and the domestic violence case to be dismissed just as we were about to start the hearing. That order had been in effect for over 10 years. Both parties had moved on with their lives and remarried but continued to have significant disputes over parenting issues. Unfortunately, the child had become the battle ground and the restraining order a weapon.

In the other recent case I handled, the court granted my client a Carfagno hearing. The main issue of contention between these parties was custody and parenting time with their child. There had been multiple motions filed by both parties, a full trial related to custody and parenting time issues, both had reported the other party to DYFS on at least two or three occasions, and five different judges had handled different aspects of their case over the five years since the restraining order was entered. The parties each testified at the Carfagno hearing. Each also called witnesses on his/her behalf. After the hearing, the judge rendered a lengthy opinion, finding that the “victim” did not sufficiently establish an objective fear of the defendant.

It is important to remember, however, that this process does not completely erase the finding of domestic violence that was originally made by the court. This process simply allows the final restraining order to be lifted or vacated so that it does not exist anymore. The finding of domestic violence remains a part of the court’s record, and the defendant’s name will remain on the National Domestic Violence Registry. However, it does remove the threat that the defendant might be arrested at any time due to the plaintiff advising the police that the other party has violated a domestic violence restraining order.

Choosing a divorce lawyer

By Bruce Matez, Esq.

Divorce is a life altering event for both spouses and their children. How the issues in a divorce are handled, and ultimately resolved, will have a significant impact on the entire family, sometimes including extended family members. It may also impact upon future spouses, significant others, and the children. The emotional and economic impact of divorce is far reaching and can be devastating. The parties’ choice of divorce lawyers is a critical first step which may very well set the tone for the entire divorce process.

I not only suggest that you “shop around” for a divorce attorney, I encourage it. Not every lawyer is right for every client; nor is every client right for every lawyer. The fit must work. While you may have been recommended to a particular attorney by a friend, co-worker or relative who had success with that attorney in the past, that may not necessarily mean he/she is the right attorney for you. Sometimes I think people are more careful about choosing their auto mechanic or hair stylist than a divorce lawyer.

The following are some general guidelines I suggest when you consider hiring a lawyer to represent you in a divorce.

Trust is the basis of every relationship
Above everything else, you should hire a divorce lawyer whom you trust. Remember that this person is going to help you make decisions that will affect your family for the rest of your lives. Trust is a key ingredient to a successful attorney-client relationship, especially in divorce cases.. However, do not trust blindly; be wary of lawyers who will tell you what to do. A lawyer should advise you of your options and what he/she perceives to be your best option, but should never tell you what to decide or decide something for you. I am often asked by clients “what would you do if you were in my position?” That is an impossible question to answer so I simply decline to answer it. I advise my clients that the decisions they make in divorce litigation or settlement negotiations must be made on an informed, rational and intelligent basis, but by THEM, not me. It is their life, not mine and, quite frankly, I am not in their position and can really never put myself in their position. Remember: after your divorce is settled, it is you who has to live your life. Your lawyer goes on to represent his/her other clients. You have to live with whatever settlement you agree to or any decision made by a judge, possibly for the rest of your life.

Do your due diligence
Just because a lawyer has been practicing law for 25 years does not necessarily mean that he/she is a good lawyer, and certainly does not mean he/she is the right lawyer for you. Get several references. Find out everything you can about the attorney. Google him/her; check him/her out online on Avvo, Linked In, Facebook, and other business or social networking media; do some research. Do not rely on just one referral and certainly don’t rely on publications like “Super Lawyers” or “Best of…” magazines. Generally, those designations are not reliable and are not based on any objective criteria. Ask other lawyers. Ask around. Most good family law (divorce) attorneys are known in the community; don’t be afraid to ask questions and get information. Remember, you are putting life altering issues in the hands of this person.

Competence can’t be faked
A competent divorce lawyer should have a solid knowledge of family law and familiarity with the local practices in the county in which your divorce will be filed. He/she should have experience, be an effective negotiator, have good writing skills, have empathy for his or her clients, and have the ability to think “on his/her feet.” People often do not check out a lawyer’s ability to do these things and only listen to what the lawyer is telling them at the initial consultation when their mind is clouded with anxiety and they are not thinking clearly. Many lawyers “dabble” in the area of divorce. Some are competent in family law, some are not. Some lawyers practice only in the area of family law. An attorney who concentrates his/her practice in family law is a much better alternative to a generalist who handles auto accidents, slip-and-fall cases, criminal cases, etc., and who handles an occasional divorce. If you need brain surgery, you wouldn’t go to a general surgeon; you should treat your divorce just as seriously as a bodily injury or illness and use a specialist.

How many cases have you won?
It is important to understand that success in divorce litigation is not measured by winning or losing. When potential clients ask me how many cases I have won, my response is that I have settled divorces for most of my clients and consider every settlement a “win.” It is rare that one party “wins” after a trial. Generally, after a trial each party wins on some issues and loses on other issues. However, it is generally accepted and understood by those who work in this field both for the court and the lawyers that BOTH parties lose on so many levels, not just financially, if the case has to be tried before a judge.

The comfort zone
Choose a lawyer with whom you feel comfortable. Listen to your gut. You are going to spend an inordinate amount of time together with your lawyer in person and on the telephone while your divorce is pending. Make sure that the person you choose is someone with whom you will feel comfortable spending time. The divorce process is hard enough without having to feel uncomfortable about being around or with your attorney. Be sure that your personality and that of your attorney are compatible.

Shark or chameleon?
Many people choose a lawyer because he/she has a reputation for being a “shark.” Be careful what you wish for I think the most effective lawyers are those that combine tough and skilled advocacy with effective negotiation skills. Most divorces can and should be resolved between the parties or the attorneys by settlement, without extensive and expensive litigation. Often when one party hires a “shark,” both parties end up spending much more than they should in legal fees. Unless your case involves an extreme situation, or you have unlimited funds and want to waste them fighting your spouse for emotional reasons, there is no need to hire a “shark.” Most cases have a range of settlement possibilities and will settle within that range. Ninety-eight per cent of divorce cases in New Jersey settle before trial. Those that do not settle, often end up with results after trial which are still within that same range of the settlement possibilities.. Some lawyers are “litigation” minded and will engage the parties in the “fight.” Other lawyers, like me, believe in attempting an amicable resolution, even in the most difficult of situations, but are also excellent advocates who can litigate effectively when the need arises. It is important that you figure out what type of lawyer you want and what your ultimate goals are. I strongly believe that you will likely end up with a similar result whether you fight, fight, fight and spend many tens of thousands of dollars on an aggressive attorney or you negotiate effectively with an attorney who is a skilled negotiator, but also has excellent writing and oral argument skills to present your case strongly to the assigned judge. You don’t need a “shark” to win.

Who’s your lawyer?
If you are choosing a lawyer who works in an office with other divorce attorneys, make sure you have an understanding up front as to who is going to handle your file. Is the lawyer with whom you consulted going to handle your case, or an associate? Ask questions about how this works, and ask to meet the associate, if that is the case. All too often I hear complaints from a potential new client that he/she hired attorney X, a partner, but the case was pawned off onto a younger, less experienced associate. Younger, less experienced associates can often develop into excellent attorneys, but you have a right to decide who represents and who is right for you. Exercise your right and find out at the initial consultation how cases are assigned within the firm. Insist on honesty and candor from your prospective attorney.

Keep your eye on the finish line?
It is essential that you understand your options and that you make an informed and responsible decision in retaining a lawyer. Take some time to consider what is your ultimate goal. Think about what type of lawyer you want to hire and what makes sense for you and your family. By nature we are all bargain hunters, shopping around for the best deal or the lowest prices. We haggle for a better deal on our cars; we attend department store sales in droves; we wait for things to go on sale to purchase them. Let’s face it, who doesn’t love a bargain? Many have learned, unfortunately the hard way, that the old saying is true; sometimes “you get what you pay for.” The same is certainly true for lawyers. First, there are many lawyers who give “free consultations.” Beware! A good, effective, appropriate divorce consultation should be at least two hours in length and you should pay for the lawyer’s time as you would consulting with any professional, whether it be your doctor or your accountant. Do you work for free? Often lawyers who provide free consultations are looking for clients. Beware! Also, there are many lawyers who will charge a smaller retainer and lower hourly rates in order to entice clients to retain them. Generally, a divorce has a basic range of fees and costs which are based upon many factors such as the legal issues to be resolved, the complexity of the facts and legal issues of the case, the other party’s attorney, the judge assigned to the case, the willingness of the parties to be reasonable with each other, the emotions of the parties, the need for revenge or retribution of one or both parties, as well as countless other intangible factors. The ultimate cost of the divorce in terms of legal fees will be approximately the same whether the lawyer seeks a $1,500.00 retainer or a $25,000.00 retainer. Most often, it is a matter of paying up front or paying later. Don’t be misled into thinking that your divorce will be a lot cheaper just because the lawyer only asks for a minimal retainer compared to what other lawyers require to start a case. Also, keep in mind the psychology of settlement; do you want to be in a position of feeling like you have to settle for something you don’t think is fair because you owe your attorney a lot of money at the time the settlement is proposed and you are going to incur even more fees and costs if you don’t settle? While the financial burden of a divorce is often a significant motivating factor in settlement, when you owe a lot at the time you are making these important decisions, that factor will weigh heavily on you as you decide whether or not to settle. View the hiring of your divorce attorney as an investment in your future.

Buyer beware!
Be wary of lawyers who:

Tell you they will take care of everything and not to worry.
Promise or guarantee you ANYTHING by way of the outcome.
Tell you what you will and will not get.
Tell you how much your divorce will cost you (unless charging you a flat fee).
Low-ball their fees and retainers.
Tell you what to do.
Tell you they know what is best.
Don’t have you sign a written fee agreement (required in New Jersey).
Try to hard sell you on them.

Choosing the right lawyer for you is essential to having a successful divorce. It is a choice you may live to regret, but may live to revere or cherish. Make the right choice from the outset and it can make all the difference.

The gap between what clients want and what the court can do

By Gary Borger, Esq.

Each prospective client enters our office for the first time with many questions to be answered.  What will happen to my children and me?  When will I see my children if I separate from my spouse?  Will the home have to be sold?  Will the children and I have to move from our home into an apartment?  Will we get enough support to live as we’ve been living?  Will I have enough money to live on after I pay support? How will I/we survive?

Each prospective client also comes in ridden with anxiety due to a lack of knowledge of what will happen to him or her now and in the future as a result of a possible or pending divorce.  The value of our initial consultation and divorce assessment to the prospective client is to answer these and other questions and relieve or at least lower the prospective client’s level of anxiety.

New clients present with both financial and emotional needs to be met in the course of their divorce.  Sometimes a new client presents with a need for revenge or vengeance for what the other spouse “did” to him or her by being unfaithful, by lying, squandering money, being secretive, being insensitive, etc.  Or, a new client comes in feeling victimized by his or her spouse and wants a judge (a father figure in the eyes of many clients) to mete out justice by punishing the other spouse or validating that, in fact, he or she has been victimized and needs to be vindicated.  These needs are real to the client.  They are so real that they are almost palpable to the attorney in the initial conference.

Unfortunately for the client with such needs, the legal system of the 20th and now the 21st century has moved away from punishing errant, unfaithful, abusive, or uncaring spouses with the advent of no-fault divorce.  In New Jersey, division of property (called “equitable distribution”) as a matter of law cannot be affected by fault of a spouse, that is, a judge cannot award you more or less property or money for the value of property because you perceive your spouse as the cause of the breakup.  The same has become true with regard to alimony for the last few years.  While the New Jersey alimony statute includes fault as a factor in determining alimony, our state Supreme Court in 2005 all but eliminated the role of fault in determining alimony or the amount of alimony to be paid or  received.  In the case of Mani v. Mani, the New Jersey Supreme Court ruled that fault or misconduct  may be taken into consideration in the determination of amount and duration of alimony ONLY to the extent that the misconduct has affected the economic status quo of the marriage or where that fault was egregious.  By way of example, if a spouse gambles away savings and retirement funds (or has used income to maintain a drug or other addiction which took money away from the family unit), and the remaining assets are inadequate to allow the other spouse to recoup her share of what was squandered (in addition to what he or she otherwise would receive), an appropriate savings and retirement component can be included in (added to) the base alimony award.  Where marital fault (such as  infidelity or emotional cruelty) has no residual economic consequences, fault cannot be considered by the judge when he or she fixes the amount of alimony to be paid.  The only exception to that rule is in the very narrow band of cases involving “egregious fault.”  The Supreme Court did not define what “egregious fault” means other than to say it is something more than ordinary fault, defining it loosely as a term of art that requires not simply more, or even more public acts of marital indiscretion, but acts that by their very nature, are different in kind than ordinary fault that breaks up a marriage.  In the extremely narrow class of such cases where a spouse’s conduct rises to the level of egregious fault, fault can be considered by the judge at trial, not in calculating an alimony award, but in the initial determination of whether alimony should be allowed at all.

Thus, the law has intentionally stepped away from that which many people getting divorced often seek, namely, to have fault in the breakup of the marriage be the central theme of the case so that the party (more) at fault is “punished” somehow by the judge in the judge’s ruling following trial.  Spouses considering divorce must understand that the system cannot and will not do that.  The legal system is ill equipped to meet the emotional needs of a divorcing spouse who sees him- or herself as the innocent victim in the breakup of the marriage.  One answer to this dilemma is individual counseling.  Divorce has been shown to be one of the most emotionally traumatic and stressful of life events, akin to the death of a loved one or loss of one’s job which threatens one’s existence as one knows it.

It is the hope of this writer that those who read this article and who are considering divorce or are in the midst of getting divorced will take it to heed and consider entering into counseling.   It is essential that all divorce litigants, however, understand the limitations of the judicial system in meeting his or her emotional needs.

Mediation – a sensible alternative

By Gary L. Borger, Esq.

“Mediation.” It’s a word that’s heard and used a lot; but, what does it mean? And, more importantly, what does it mean to someone in the midst of marital turmoil and confusion, or even separation, or divorce?

Mediation can be a less expensive, quicker, less contentious approach to resolving those questions that must be resolved if a marriage must be dissolved and the spouses have the wisdom not to want to give up control of their lives to “the system,” i.e., to lawyers and judges.

First, most mediations are conducted by using one mediator (although there are co-mediations where more than one mediator is involved, such as a man and a woman and/or an attorney and a psychologist).

Second, the mediation is conducted in an office, not at the court house.

Third, the mediator does not make decisions for the spouses. Rather, he or she guides the spouses to address between themselves each decision which the spouses must make to complete a final agreement and get divorced on their own terms.

Fourth, the mediator helps keep the negotiations between the spouses civil and guides them to address each question that must be resolved to have a truly settled case that only needs a judge to dissolve the marriage, not to rule on the many questions that the spouses in mediation resolve between themselves on an out-of-court basis, on their terms which both can accept as fair.

Fifth, although many mediators are attorneys (though they don’t have to be), the mediator should not give legal advice to the spouses such as what likely would happen if the spouses were to go to court for a judge to rule on all their questions about their children, property, and income/support. Rather, optimally (although not necessarily), each spouse will have consulted with his or her individually-retained attorney for legal advice prior to going through the mediation (and, as necessary, to have legal questions answered as the mediation proceeds along).

This is but an outline of what mediation is. Future postings will address how mediation is different than other means of dispute resolution (such as arbitration, negotiation through lawyers, or trial before a judge), and how mediation proceeds from start to finish.

Gary answers some divorce law questions

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.