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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.

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.

Children And New Partners- The Court Weighs In

by:  Deena L. Betze, Esquire

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

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

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

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