A Better Approach to Family Law
RISA A. KLEINER, Esq. APM, is an attorney and an Accredited Professional Mediator with more than 22 years of experience who is committed to seeking better, more creative and less stressful solutions for divorce and family law matters. Whether you select her to mediate your case, negotiate a settlement or to represent you in a collaborative divorce, you will avoid expensive litigation, resolve issues in a non-adversarial manner and reach solutions that work best for you and your children.
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The Divorce Process
What are my options?
There are several ways to get divorced. Each of the following is a different process, but all require that issues of custody, support, division of property and collateral issues be resolved before the divorce can become final.
1. Traditional litigation
2. Arbitration
3. Mediation
4. Collaborative Divorce
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Litigation
What can I expect if my case goes directly to court?
In the traditional process, a divorce starts when one party files a Complaint for Divorce. The Complaint is served on the opposing party, who has 35 days to file an Answer or Counterclaim.
The court then schedules a Case Management Conference for the attorneys and the Judge enters an Order setting deadlines for the exchange of documents. This is called “discovery” and may include Interrogatories (written questions) and depositions. There will be discussions between the attorneys to try to resolve the issues and more court conferences will be scheduled.
If the issues are not settled, you and your attorneys will appear before the Early Settlement Panel. This is a revolving panel of two attorneys who make recommendations for settlement. If the issues still cannot be settled, the court will direct you and your spouse to attend at least one mediation session with a court-approved mediator. And, if the issues are still not resolved, a trial will be scheduled.
How long does it take?
A litigated divorce will take at least one year and often longer, depending on whether you have a trial. The court’s calendar is often very crowded. When a trial is scheduled, it is rarely held on consecutive days and may extend over several months. The Judge may not issue his or her decision for several months thereafter. In some counties, trials may extend the length of a divorce to two or more years.
How much does it cost?
Litigation can be very expensive as there are repeated court appearances, waiting time and preparation for the attorneys, who are charging by the hour. A trial can last several days and requires extensive preparation. Therefore, it increases the cost of a divorce significantly.
What happens once the issues are settled or after they are decided by the court?
At the conclusion of your case, the Judge will sign a Judgment of Divorce (JOD). The JOD will include provisions for custody and parenting time, child support and alimony (if any) and division of property. It will have a gold seal that officially memorializes your divorce.
What are the advantages of litigation?
When the parties do not cooperate or cannot reach agreement, even with the assistance of their attorneys, a judge will decide the issues so that the divorce can be concluded. The formal discovery process with extensive documents is sometimes required to uncover hidden assets or dissipation of assets.
What are the disadvantages of litigation?
Litigation increases the hostility between the parties. It is very expensive and drains the finances of the parties and their emotional energy. Children can be caught in the middle of warring parents. The process is slow. Few cases (less than 2% in NJ) actually go through an entire trial, so, in the end, the issues must be settled and this often happens under pressure and without adequate time to consider the consequences.
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Arbitration
How is Arbitration different from Litigation?
Arbitration is a form of Alternate Dispute Resolution (ADR). In arbitration, the parties select a neutral person (usually a lawyer or retired judge) to decide their issues. The parties appear with their attorneys and the arbitrator takes testimony and hears evidence, but the proceedings will be more informal and will not take place in a court.
What are the benefits of arbitration?
Arbitration proceedings can be scheduled at the convenience of the parties. There is less wasted time and the process goes more quickly.
What are the disadvantages of arbitration?
Arbitration is not necessarily less expensive than litigation as the arbitrator is usually a very experienced attorney or retired judge who charges a high hourly rate. In addition, there are only limited circumstances under which an arbitrator’s decision may be appealed.
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Mediation
What is mediation?
Mediation is another form of ADR. In mediation, the parties settle their divorce issues outside of court. Instead of asking a judge or arbitrator to decide the issues, the mediator helps you and your spouse make the decisions that are most appropriate for your family.
Who selects the mediator?
You and your spouse select the mediator. You can ask your attorney for a recommendation or you can research mediators on the internet. NJAPM (NJ Assn of Professional Mediators) lists accredited mediators on their website, www.njapm.org.
Should I file a Complaint for Divorce first?
Parties who mediate their issues usually wait to file a Complaint until they have resolved all the issues and a Marital Settlement Agreement has been signed. That way, they don’t have to pay an attorney to go to court until everything is settled.
Why do I need an attorney if I have a mediator?
The mediator is often a skilled family law attorney. But a mediator does not represent either party or offer legal advice. The mediator is a neutral, unbiased professional who helps facilitate an agreement by suggesting options and alternatives and guiding the parties to reach a reasonable settlement. The mediator cannot prepare or file court papers and cannot accompany you to court.
Will there be full disclosure of my spouse’s assets and debts in mediation?
Good faith and full disclosure are essentail in mediation. The mediator will oversee an open exchange of all critical documents necessary to allow you to reach decisions on all financial issues.
What other advantages are there to mediation?
Mediation is much faster than litigation and can often be completed in several months. You can schedule sessions at your convenience. There is no lost time waiting for a judge to get to your case. All proceedings are confidential. The issues are resolved in an atmosphere of cooperation, saving emotional and financial resources. The process is much less stressful than litigation.
Are there disadvantages to mediation?
Some people find it difficult to negotiate directly with their spouse, even with a mediator there to assist. A lack of trust between the parties may also make mediation difficult. If there has been a history of domestic violence, mediation is not advised.
What is the cost of mediation?
Mediation generally costs less than one-third of litigation, even when each party has their own attorney to advise them.
Will the mediator draft a Marital Settlement Agreement?
The mediator will draft a Memorandum of Understanding (MOU) which will form the basis for your settlement agreement. You and your spouse will sign it with your attorneys once they have finalized it.
How does the divorce get finalized?
One of the attorneys will draft and file a Complaint for Divorce after the Settlement Agreement is signed. A final court date will be set for the divorce. Some courts will even permit the divorce to be finalized without a court appearance. The Judge will attach the Settlement Agreement to the Judgment of Divorce (JOD) and provide the parties with the official gold seal copy.
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Collaborative Divorce
What is Collaborative Divorce?
Collaborative divorce is a new and unique team-based form of ADR. In the Collaborative process, each party is represented by a collaboratively trained attorney. The parties and their attorneys sign an agreement in which they commit not to file a Complaint for divorce until all the issues are resolved. They also agree that if they need to retain financial or custody experts, they will use joint experts who are also collaboratively trained.
How is Collaborative Divorce different?
In a collaborative divorce, parties and their attorneys meet together to work out the issues. The clients lead the discussion while the attorneys play a supporting role. There is a commitment to share all information in a cooperative and constructive atmosphere. The focus is on addressing the needs of the family as they transition to the future. The emphasis is on working cooperatively while still allowing the attorneys to advocate for the parties. Shielding the children from the stress that a litigated divorce creates is also a top priority.
What are the advantages of Collaborative Divorce?
In a collaborative divorce, your attorney is by your side throughout the process. You and your spouse share your respective concerns, interests and needs in a trust-based environment. Not only is the process confidential, but the information shared there cannot be brought to the court. Since only joint experts are used and there are no court proceedings until the final divorce, the cost of a collaborative divorce is far less than that of a litigated divorce. Collaborative divorce is a constructive — rather than a destructive — process. Its goal is to promote good communication between the spouses and to avoid making adversaries out of you and your spouse . The process is relatively quick and is usually concluded in less than six months with an agreement which is custom-tailored to your family’s individual needs.
Are there disadvantages to Collaborative Divorce?
Your spouse must agree to retain a collaboratively trained attorney for the divorce to proceed in this process. Although few collaborative cases break down, if one of the parties decides to file a Complaint with the court pre-maturely, the collaborative process must end immediately and the parties must retain litigation counsel.
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How do I Know Which Process is Right for Me?
Click on the Tabs at the top of the page to read more about Mediation and Collaborative Divorce. You can also contact our office at 609.951.2222 to discuss your questions with Risa A. Kleiner. Risa has been an accredited mediator for 14 years and a trained collaborative law attorney since 2007.
If you are interested in learning more about Collaborative Divorce and mediation, please contact our office by calling 609.951.2222 or emailing us at Risa@rkleinerlaw.com to discuss your questions.