cost of divorce

4 Ways to Control the Cost of Divorce

by Deena L. Betze, Esq.

An old and rather trite joke goes like this: “Why is divorce so expensive?”

Answer: “Because it’s worth it.”

While the punchline may not be appreciated or humorous to some, there is an ounce of honesty in any joke, even this one. Because the truth is, whether it was a mutual decision, or the decision was made for you, when divorce is the only option, divorce really is the only option. This one brings to mind the frustrations I often hear expressed by clients going through the painful and financially and emotional expensive process of divorce, “Why does it cost so much?” and “Is there anything I can do to stop the bleeding?” The answer is, “Yes, there are things you can do to control divorce costs and minimize the financial damage.”

I will examine four ways to control and even reduce the cost of finalizing a divorce:

  1. Improving communication;
  2. Being an active participant;
  3. Engaging (and listening to) your professional team; and
  4. Exploring alternative dispute resolution options.

Improving Communication

Communication

Effective communication is the cornerstone of any good relationship. That includes your relationship with your attorney and is a two-way street. Lack of attorney-client communications is one of the leading complaints from clients who are dissatisfied with their divorce proceedings, and can increase the expense of the divorce itself by unnecessarily increasing time spent on issues that otherwise could have been handled by simple and clear communication.

Client Communication:

  • Examine and communicate your priorities to your attorney. I advise clients to think about and tell me the one or two goals most important to them in the process (e.g., wellbeing of children, financial security). Communicating and remaining focused on the most important goals cuts out a lot of the extraneous issues that often bog down divorce proceedings, impede meaningful settlement discussions, and increase the expense to the client.
  • Respond promptly to attorney calls, e-mails, and letters. Read what is going on in your case and follow your attorney’s instructions. The more responsive and involved you are, the less we need to do; for example, this means you needn’t be charged for follow-up letters, e-mails and calls when we don’t hear back from you.
  • Provide information we need such as statements, employment and insurance information, e-mail and text exchanges. Nowadays you don’t have to be particularly tech savvy to do this. Nearly everything you need can be accessed on your smart phone. (More on this subject in my future “Being an Active Participant” blog.) It is far more expedient for you to provide your personal information and documents than to have your legal team hunt them down for you or, worse, subpoena things to which you likely already have access.
  • Ask us legal questions before acting, especially if you’re not sure. We are here to provide you legal advice and protect your interests. It is far simpler to ask if you should do something you are not sure about than to wage an expensive legal battle with the other side over something you did without running it by your attorney first. Many parenting and other disputes along the way can be avoided by asking questions before you act.
  • Send an e-mail instead of making a phone call when you can. E-mails generally take far less attorney time and a quick question can be answered faster with less expense. Bonus: we are often able to respond far more quickly to an e-mail than to a phone call as we can respond whenever we have a moment to do so.
  • Be thoughtful and strategic about what you do ask your attorney/legal team. We have knowledge of the legal process of divorce, but are not financial planners or therapists. Our time is often more expensive than that of experts. Narrow your inquiries to your attorney to actual legal questions and save the emotional concerns for those with real expertise in that area. And, yes, getting into counseling saves legal fees and costs overall.

Attorney Communication (you should expect your lawyer and legal team to do the following):

  • Promptly respond to your phone calls/e-mails, hopefully within 24 hours unless we are away or in court, and to notify you if we are going to be unavailable for an extended period of time. (When we are away or in court, you can always speak with a staff member with whom we may have contact while away or in court.)
  • Provide you with copies of every communication we send or receive in your case, whether good or bad.
  • Review important communications with you before they are sent to the court or other side.
  • Provide prompt, itemized billing statements to you on a regular (monthly) basis.
  • Keep you informed regarding all updates on your case. Not only is it our responsibility to let you know we received a letter or response from the other side or the court, but also of important court dates and deadlines. In addition, we are responsible to inform you of any changes in your legal team which, in some cases, may occur. For example, there are occasionally situations where another attorney or a paralegal may need to handle a particular aspect of your case to save you legal fees or get the task done more quickly. This is something your lead attorney should communicate to you in advance, so there are no surprises.

In sum, you can take an active role in reducing the time spent by your attorney and fees billed to your case by making your communications with your attorney and legal team count, and reducing those that are unnecessary.

More on how you can control the expense of divorce coming soon.

divorce rates

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
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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 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!

divorce mistakes

5 Common Mistakes People Make When Divorcing

By:  Bruce P. Matez, Esquire

Spouses who are considering divorce, are beginning the divorce process, or are in the process of divorcing, often begin to plan for the divorce and take actions that quickly derail settlement discussions, negotiations, mediation and the collaborative process. Sometimes they take such actions as a result of advice from counsel. The following are five common mistakes people make when divorcing which most often wreak havoc on the divorce process, cause unnecessary tension and mistrust, and make it very difficult to reach a resolution.

 

  1. Dating and new long-term relationships. When one spouse starts to date before spouses are divorced, especially if he/she begins a long-term relationship, often the other spouse, even if he/she wanted the divorce, is not emotionally prepared for that inevitability. New significant others also often interject their own values and judgments into the divorce, which tends to cause problems between the spouses. There is no law that prohibits a person who is divorcing from dating or engaging in a new long-term relationship, yet it has been my experience that this issue becomes a major road-block. It is also generally not a good idea to introduce a new significant other to children during the divorce. Aside from the emotional and mental impact this has on children, it causes all kinds of problems within the divorce process. From my perspective, it is really quite simple… be patient and just wait a while.

 

  1. Transferring funds out of joint accounts. One divorcing spouse sometimes transfers funds from joint accounts to individual accounts just prior to or after the filing of a complaint for divorce or upon the commencement of divorce negotiations, mediation, etc. While there may be limited situations in which such actions are necessary and appropriate, normally and generally this is not something that is necessary, especially without notice to the other spouse. The result of taking this action almost always creates tension and mistrust that lawyers, mediators and collaborative lawyers spend considerable time trying to resolve. It is extremely hard to undo the damage that is caused by such actions. If you absolutely MUST take such action, I urge you to notify your spouse immediately or in advance, and make sure to be able to show that the funds are safe and protected and will not be utilized without consent.

 

  1. Cut-off access to credit cards and home equity lines of credit. Similar to transferring funds out of joint accounts, spouses often close joint credit card accounts and/or home equity lines of credit so that the other spouse cannot incur significant debt during the divorce process. This is another action which is sometimes necessary and appropriate, but not always.

 

  1. Overspend on credit cards. Don’t start spending money and charging to credit cards. It is ok to keep spending in the same manner that you had been. Be reasonable, be smart, be rational. Don’t overspend!

 

  1. Engage your children (at any age) in the dispute. Children do not need to know “the truth”. Children have the right to be children and not be involved in parental disputes nor exposed to adult issues and discussions. Many adults who experienced divorce in their homes tell me that their parents shared adult information with them that they would have preferred not have been shared with them AND I have heard many times from similar adults that they believe their parents robbed them of their childhood as a result of involving them in their divorce disputes. This is true for adult children a well as young children; just LEAVE THEM OUT OF IT.

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 I have found in working with such people over the past almost 30 years has been the astonishing inability to forgive and let go. Sadly, that inability is one of the major reasons why I believe divorce is so expensive and why people spend so much money fighting in divorce and thereafter.

Betrayal in a marriage comes in many forms; some cheat, some overspend, some hide money, some lie about finances, and so on.  There are lots of reasons that trust becomes an issue in a marriage or other relationship; why anger, hurt, and all too often, vengeance rear their ugly heads and create impasse.  Forgiveness may very well be the key to unlocking the gateway to resolution, peace, and a happy life moving forward.

President Clinton once asked Nelson Mandela about inviting his captors and jailors to his inauguration, appointing his persecutors to government position.  He asked “Weren’t you really angry all over again?”  Mandela responded “Yes, I was angry.  And I was a little afraid.  After all, I’d not been free in so long.  But when I felt the anger well up inside of me, I realized that if I hated them after I got outside that gate when they would still have me. But I wanted to be free, and so I let it go.”

If Nelson Mandela was able to forgive his persecutors, jailors and captors and “let it go”, I have to wonder why spouses, parents of children, are unable to forgive each other and “let it go.”  One of the many goals I have in my mediation and litigation practice is to help my clients move on with their lives, to let go of the past and focus on the present and future.  Often that requires forgiveness and that is an extremely difficult thing to achieve in divorce.  I often wonder if divorce would be less expensive, less stressful, less acrimonious and less anxious for people if they were able to find forgiveness in their hearts.

Domestic Violence And Your Options

By: ​Peter M. Halden, Esquire

During the past half century or so, the subject of domestic violence has evolved from a laughing matter to a deadly serious societal concern.

One of television’s most popular early shows was The Honeymooners, a staple of the mid-1950s, which starred Jackie Gleason as the oft-frustrated Ralph Kramden. As the live television audience responded with gales of laughter, Kramden would routinely threaten his wife, Alice, with bodily harm, mimicking a punch to the face while exclaiming, “One of these days, Alice……POW, right in the kisser!”

We know better today. Domestic violence isn’t funny at all; rather, it’s a serious problem that affects relationships across virtually all societal and economic groupings.

Victims of domestic violence are often presented with two independent legal options, but they have vastly different focal points. While these two options are not mutually-exclusive, meaning that victims can pursue either or both, they lead to dramatically different results.

The first option is a restraining order which, if granted by a judge, prevents the aggressor from any future contact with the victim. Restraining orders are heard as part of a civil proceeding in the Superior Court, first as a temporary restraint, entered based on the convincing testimony of only the victim. Then a judge without a jury decides whether to grant the restraining order following a trial to determine whether the victim requires a restraining order for reasons of future personal safety after both parties are given the opportunity to testify and be cross-examined by the other or the other’s attorney.

The other option is filing a criminal charge such as assault or harassment against the aggressor in the municipal court. If convicted by a judge (again without a jury), the aggressor faces fines, surcharges and even potential incarceration.

But there’s an even more basic difference between these two potential remedies, and it boils down to one word: CONTROL.

In the civil proceeding (aimed at securing a protective restraining order), the victim has complete control over the process. He or she can pursue the restraining order or, alternatively, decide to drop it. The decision is totally up to the victim, since the case is captioned as “Victim v. Aggressor.”

Not so in municipal court. Once the charge is filed, the case is captioned as “State of New Jersey vs. Aggressor.” The charge can then be dropped only with the consent of the prosecutor. Years ago, the prosecutor almost always did what the victim wanted, meaning the case was dropped or pursued, depending on the victim’s discretion. However, as society became more concerned with repeat domestic violence offenders, the judgment of the victim gave way to an approach that encouraged prosecution of domestic violence cases even when the victim had a change of heart.

This becomes especially problematic when one realizes that punishing the aggressor in municipal court often adversely affects the victim as well. More often than not, a conviction for a domestic violence-related offense in municipal court results in a fine against the aggressor. But when the aggressor is the spouse of the victim, and they share bank accounts, a fine against one party affects the other in equal measure.

In addition, a conviction leaves the aggressor with a permanent record as a domestic abuser, which can result in a loss of immediate employment or of a future employment opportunity. In a situation where the victim and aggressor remain in a relationship, the aggressor’s employment limitations going forward may also affect the economic welfare of the victim.

Thus, the decision by the victim as to whether to file a criminal charge against the aggressor in a domestic violence should not be taken lightly. Once filed, the victim no longer controls the process. Legal advice, for both the victim and aggressor, is readily available and should be strongly considered in domestic violence situations.

New Jersey Adoption FAQS

By: ​Deena L. Betze, Esquire

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? New Jersey statutes, case law, and public policy all favor adoption and the best interests of the child, which is the standard by which New Jersey courts must base adoption decisions. New Jersey laws strive to promote finality of family arrangements for the child. The following are some frequently asked questions and answers about adoption based on New Jersey adoption law:

• Who can adopt a child?

In New Jersey, married couples are not the only ones who can adopt. Single adults, as well as same sex couples, may also adopt. There are no restrictions on who may adopt in New Jersey based upon gender, marital status, or sexual orientation. A married person cannot adopt a child alone unless the other spouse consents or is noticed and does not object.

• What is an “open” adoption and are those arrangements enforceable in New Jersey?

An open adoption is one in which there is some level of contact between the adoptive parents and the biological parents, both before and following the adoption The level of contact varies from case to case. A typical arrangement might involve the biological parents sending pictures and letters on regular intervals or, in some cases, even having visits with the child. Ultimately, the biological and adoptive parents reach an agreement on the nature, type, and frequency of contact with which they are comfortable. Currently, open adoptions are not recognized in this state. Therefore, while such arrangements are often made between adopting parents and birth parents, courts in New Jersey cannot enforce open adoption arrangements.

• What is a “surrender of parental rights?” Can a birth parent change her/his mind after signing one?

A surrender of parental rights is a signed consent to place a child for adoption and surrender of all parental rights by a biological parent. It can only be taken by an adoption agency, approved by the state, at least 72 hours after the birth of the child, or by a judge of the Superior Court of New Jersey. Once a valid agency surrender has been signed, it is irrevocable. There is no further waiting period during which the surrendering, biological parent can change her or his mind. A biological parent can only contest a surrender in court if he/she is able to prove that it was obtained by fraud, duress or misrepresentation on the part of the adoption agency in taking the surrender.

• Must a birth-mother who is placing a child for adoption name or identify the birth-father?

No. A birth-mother wishing to place a child for adoption in New Jersey is not required to name or identify the birth-father. If a birth-mother refuses to name the birth-father and he cannot be identified, the adoption will proceed without notice to him.

• What if the birth-father is identified?

If any identifying information has been provided about the birth-father, the agency (or the attorney for the adoptive parents, if it is a private placement) must attempt to undertake a diligent inquiry to notify him of the potential adoption. However, a birth-father who is noticed of a potential adoption is charged with the responsibility to assert his parental rights or he may lose his ability to participate in or contest the adoption. If he does not either file for a paternity determination or seek to amend the birth certificate to add his name as the father within 120 days of the date of birth of the child, he will not be entitled to notice of the adoption proceedings.

• Who can contest an adoption?

A biological parent who has not signed a valid agency surrender can contest an adoption, but a birth father will only receive notice of the adoption proceedings if, within 120 days of the date of birth of the child he has acknowledged paternity by amending the birth certificate to add his name or has made an application to the court to assert his parental rights. In certain circumstances, a guardian or relative of the child may file an objection to the adoption, if that person has provided primary care and supervision for the child for six months or half of the child’s life, whichever is less, during the last two years. Under current New Jersey law, a birth-parent who is contesting an adoption is entitled to legal counsel, potentially pro bono (free of charge), because of the significant, constitutional rights that are at stake in an adoption proceeding.

It is of the utmost importance to make sure any adoption 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. Private placement (non-agency) adoptions are permitted in New Jersey as well, but different legal standards apply for their finalization. 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 upon the type of adoption and the nature of the placement.

When choosing an adoption attorney, you should assure that your attorney is experienced in adoptions and fully familiar with the laws and requirements to make the finalization of your adoption as seamless and joyful as possible.

How To Avoid Divorce Court

By: ​Gary L. Borger, Esquire

While less than 2% of the divorce cases filed in New Jersey actually going to trial, a lot of money can be wasted on legal fees as a divorce is processed through the court system heading toward trial even if it settles (as most cases do) at some point before trial actually starts. Trials involve live testimony of witnesses before a judge (as there are no juries in divorce trials in New Jersey), with each witness being cross-examined by the other spouse’s attorney, and with documents being presented as evidence to the extent allowed or limited by the rules of evidence.

Trials are costly in terms of legal fees and lost time from work and are fraught with uncertainty of outcome. Preparation for trial is also very costly as attorneys review all the documents in the client file; identify, prepare and number documents for presentation as evidence at trial (to the extent allowed by the rules of evidence); interview and prepare each witness who may testify at trial; and prepare questions to interrogate witnesses, both on direct examination (when presented by that attorney) or on cross-examination (when presented by the other attorney).

There are alternatives to divorce litigation and trial.

Agreement Directly Between the Spouses

First, in the rarest of cases the spouses can sit down together and reach a settlement on their own, then have an attorney for each spouse review that outline of settlement terms, address items that the spouses may not have considered, and ultimately put the settlement into the form of a marital settlement agreement (MSA) to be signed by both spouses. The case then becomes a settled or uncontested case.

Mediation

Second, the spouses can pursue mediation. Mediation involves the spouses sitting with a neutral mediator (usually but not always an attorney) who does not represent either spouse but rather assists both spouses in their effort to reach acceptable terms of settlement, helping them over impasses, keeping the process orderly, and making sure that all necessary items are addressed. If mediation results in a settlement, most mediators then prepare a memorandum of understanding (MOU) that can be used as the basis for an attorney to prepare a formal MSA to be signed by both spouses. The case then becomes a settled or uncontested case.

Collaborative Divorce

Third, the spouses can consult with attorneys trained in the collaborative divorce process. In the collaborative divorce process, both attorneys and spouses sign a collaborative divorce participation agreement that governs and sets forth the rules of the process for that couple to go through settlement negotiations in an orderly fashion. Rather than each attorney taking an adversarial posture, attacking the other spouse, although the attorneys still each represent one or the other spouse, they actually collaborate together with the couple to try to achieve a settlement that meets the most important goals of each spouse. Obviously, as with all negotiations, give and take (compromise) is at the center of the process. In most collaborative divorce cases a divorce coach assists the spouses and the attorneys in addressing the emotional issues that often are a barrier to settlement. In some cases, a financial neutral expert (usually a CPA) assists the parties in developing the list of expenses each will need as they live separate and apart from one another and in valuing any businesses, business interests, or professional practices that a spouse may own or in which he or she may be a partner, shareholder, or member. The collaborative divorce participation agreement includes a provision that, if either spouse wishes to terminate the process and file for divorce before a settlement is achieved, the collaborative divorce process ends and neither attorney, in such case, can represent his or her client in the divorce litigation. (If a settlement is achieved, as often is the case in the collaborative divorce process, the attorneys can be involved in assisting the spouses in processing an uncontested divorce in the court system after a marital settlement agreement (MSA) is drafted by the attorneys and signed by both spouses.)

Mediation and collaborative divorce enable the spouses to fashion the terms of their settlement that will govern them for the rest of their lives after the divorce and to do so in a private and confidential setting (as nothing discussed in the mediation or collaborative divorce process can be revealed to a judge should the case fail to settle and one or the other spouse files for divorce). Additionally, for those marriages which involve children, the direct negotiation involved in mediation and the collaborative divorce process helps the parents learn how to better communicate with one another to the benefit of their children in the future. It must be remembered that parents remain co-parents of their children after the divorce and have to communicate, discuss, and negotiate things for their children and attend important events in the children’s lives together such as graduations, marriages, births of grandchildren, etc.

Negotiated Agreement

Fourth, the most common method of reaching a divorce settlement is for each spouse to retain his or her own attorney (as one attorney cannot ethically represent both spouses in the State of New Jersey) and to have those attorneys negotiate terms of settlement with one another with the authority of their respective client. This process does not allow the spouses to work together to fashion their own settlement but rather relies upon their attorneys as their surrogates to do so for them. It generally is more financially costly and often takes longer than either mediation or the collaborative divorce process. Further, with attorney-to-attorney negotiation, the spouses do not get to communicate directly with one another to reach their own terms of settlement and may find that the tone of the communication between the attorneys is quite different than how one, the other, or both spouses would have liked it to be, causing more emotional distance between the spouses than is necessary.

Divorce Litigation

When a spouse (or his or her attorney) insists on filing for divorce before attempting settlement through one of  the alternative dispute resolution vehicles such as mediation or the collaborative divorce process, the spouses become caught up in divorce litigation in the court system. This ultimately results in a greater expenditure of money for attorneys’ fees and is a much less efficient process as it can involve multiple court appearances which oftentimes result in attorneys sitting around (while charging their clients for being out of the office), waiting for the judge to get to their case for the various conferences that inevitably get scheduled during the life of the case as it proceeds in theory toward trial. Another shortcoming of rushing into divorce litigation is that, rather than the spouses sitting down together with or without their attorneys to try to settle such issues as a parenting plan and support while the divorce is pending, oftentimes “motions” must be filed (written requests supported by factual certifications or affidavits and financial statements) that request an order of the court for parenting time, interim alimony, child support, etc. Motions are costly and involve filing fees and attorneys’ fees and are open to the public to review as our court system is a public system.

Attorneys are an important part of the divorce process, but spouses seeking divorce should spend their money wisely on attorneys and not waste money as a result of being motivated by anger, resentment, and the other negative emotions that are an inevitable part of the divorce process. (This is one of the reasons that counseling is so important for people going through a divorce.) It is always better to have saved money for one’s children’s college educations or one’s retirement rather than spending it wastefully on legal fees. That is not to say that money spent on attorneys is wasted, but rather that money spent on attorneys should be spent wisely.

Before rushing into the divorce process, consider mediation and the collaborative divorce process as wise alternative options to divorce litigation or negotiation through attorneys. Your future could be impacted substantially by the decision you make at the outset as to how you choose to divorce.

What About The Furniture?

By: ​Gary L. Borger, Esquire

One of the areas of dispute in divorce has to do with the contents of the home.

How is the furniture, furnishings, tools, cookware, collections and collectibles, antiques, art work, etc., handled in divorce?

Most couples eventually work out an in-kind division, that is, they divide up the contents of the home item by item, coming to agreement on who keeps what. That is the most reasonable option for those spouses who are able to act rationally. However, there are those contentious cases where the couple fights about everything, and that includes the furniture. In those cases, there are a variety of options, none good.

First, they can engage a neutral third party to act as a referee as the spouses alternate selecting items or collections (depending on the rules that are set up) until all the items are divided between them (regardless of value).

Second, the couple can engage and retain a personal property appraiser who, for a fee, will inspect the contents of the home and then write up a report on the value of each item or collection of items. That is rarely done and has a monetary cost to it.

Third, (and this is the worst option), they can exchange sealed bids, each spouse writing a number on a piece of paper with that number representing what that spouse feels is the total value of all of the contents of the home. The higher bidder gets it all and pays 50% of that bid value to the other, either by check of by offset against other assets such as the bank account balance, the investment account (if there is one), the difference in the value of the motor vehicles, or even as a credit against a share of retirement accounts. (This is the option that a now-retired judge in our state used to use to punish people who couldn’t work out a division of their property without the judge being involved.)

The bottom line is that the best approach is the one taken by those couples who can act rationally despite their upset, resentment, anger, etc., resulting from how the marriage broke up, and can resolve this issue between themselves without a waste of money on legal fees to fight over the contents of the home.

As has often been said, it’s never the value of the vase, lamp, table, or whatever is holding up a settlement, that prevents the case from settling; it’s the underlying emotional issues that motivate one or both of the spouses to continue the battle regardless of the cost compared to the benefit to be obtained by continuing to fight.

Do yourself a favor and do not pay your attorneys to engage in a battle over your furniture and furnishings.

Equipping Parents To Forge A Way Forward Despite Their Differences

By: ​Bruce P. Matez, Esquire

In a recent case decided by the New York Appellate Court, Weisberger v Weisberger, New York App. Div., July 10, 2018, the court was faced with addressing conflict between parents’ fundamental religious practices and beliefs. At the end of the opinion, the Appellate Court stated the following:

We acknowledge that both parents are sincere in their devotion to the children and, with the exception of occasional lapses in good judgment, neither parent has engaged in conduct that is contrary to the best interests of the children. And yet, the parties’ religious, moral, and ethical beliefs and values with respect to raising their children, while once compatible, have now become incompatible in many important respects. While the arrangement set forth here may not fully satisfy both sides of this dispute, courts do not always have the perfect solution for all of the complexities and contradictions that life may bring—the parties must forge a way forward as parents despite their differences. We are confident that both parties will exercise their best judgment in these matters in a manner that furthers the best interests of their children.

The court system is not perfect and does not have perfect solutions to every day issues that we face such as how to address significant differences in parenting style, religious beliefs, moral and ethical differences of opinion, etc. In reality, our court system is not equipped, nor should it be tasked as such, to deal with those types of parenting disputes as they are truly not legal issues, but personal issues. We see these types of disputes in courtrooms every day. We see these types of disputes in mediations every day. Parents are better equipped to find reasonable and rational solutions to these parenting issues. As the New York Appellate Court stated, parents “must forge a way forward as parents despite their differences.” Mediation and the collaborative divorce process provide parents with a more civilized and goal/interest-based approach to these every-day issues.