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

By Bruce Matez, Esq.

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

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

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

When Zeal Turns into Zealotry, Everyone Loses

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

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

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

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

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

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

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

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

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

By:  Bruce P. Matez, Esquire

NJAPM Accredited Mediator
APFM Certified Advanced Practitioner

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

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

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

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

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

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

1 Aside from the division of a business interest.

2019 Nonprofit Stars

By:  Bruce P. Matez, Esquire

BorgerMatez congratulates BetterWayDivorce (South Jersey Collaborative Divorce Professionals) for being featured among the 2019 Nonprofit Stars by South Jersey Biz.

The South Jersey Collaborative Divorce Professionals, now known as BetterWayDivorce, is one of 18 nonprofit organizations featured by the South Jersey Biz for their efforts in providing support and resources to improve the lives of the families facing divorce. As founding members of the South Jersey Collaborative Divorce Professionals, Gary L. Borger, Esq. and Bruce P. Matez, Esq., APM, along with their associate Deena L. Betze, Esq. recommend collaborative divorce and divorce mediation whenever possible as alternatives to traditional litigation and adversarial approach to divorce.

Learn more about collaborative divorce at
https://www.njfamilylaw.net/divorce-attorneys-nj/collaborative-law-new-jersey/

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
Familyinequality.wordpress.com
Play Video

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.