Risa A. Kleiner, Esq.

September 25, 2009

There is an old courthouse joke about how the court decides who gets the dog in a divorce.  Urban myth has it that the judge in this case directed the parties to bring the dog to court.  Placing the dog in the middle of the courtroom, the judge told each party to call the dog and promised that whichever party the dog chose, would be able to keep the dog.  So, each party called out to the dog, urging her to come to them.  The dog remains motionless for a moment — and then, what does the dog do?   Yes — you guessed it — the dog runs straight to the Judge.  

That story may now be put to rest following a groundbreaking ruling by the Appellate Division last March which changed the way pets are treated in the Family courts of New Jersey.   No longer seen as mere “furniture”, the issue of who shall retain a pet after the break-up of the parties who shared him or her, is now worth the court’s consideration. 

This week, a Gloucester county trial court ruled that the two unmarried parties who jointly purchased a dog for $1500 during their 13 year cohabitation, shall share possession of him on a five-week rotating basis.

At the initial trial, the Judge had denied a request that the parties’ six year old pedigreed dog be returned to one of the parties.  The court had held that pets were more like furniture, antiques or other possessions and that they lack the “unique value” that would permit the court to order that they be returned to one of the parties.  Instead, the court only addressed the $1,500 purchase price.  On appeal, this decision was overturned and sent back to the trial court for further proceedings.

Following a hearing and the submission of briefs, the trial court again reviewed the issue.  The appellate court had directed the trial judge to determine whether the parties had reached an oral agreement as to Dexter’s possessions and to consider what was equitable and fair under the circumstances.

This time, the court awarded joint “possession” of Dexter to the couple in five-week rotations.    Each party was directed to pay the expenses for the dog while in their possession, including the cost of cremation if Dexter dies while with them.  While the trial judge refused to order either party to notify the other if Dexter was hurt or ill or has to be euthanized, he did suggest that whomever had the dog cremated would share the ashes.

While the judge emphasized that he was awarding “possession” not “custody”, this was clearly a recognition that pets are far more valuable than their purchase price (here, $1,500).

September 21, 2009

One of the things that clients always ask  in the initial consultation is:  “How long does it take to get a divorce?”  I always give the traditional lawyer’s answer:  “It depends.”   Sometimes they are asking because they want the divorce to get done quickly.  Other times, they are fearful that it will all happen too fast. 

“Depends on what?”  is their usual response.  Good question. 

Actually, the timetable for a divorce depends on a number of things.  First, how complex are the legal issues?   Second – and perhaps even more important — how complex are the emotional issues?  And third, will the parties be litigating their divorce issues, mediating those issues or working with collaboratively-trained attorneys to resolve them?   Most divorce cases have fewer complex legal issues and more complicated emotional issues.  Even so, a divorce case can easily take more than a year from start to finish — often much longer if the parties need to wait for the court to schedule a trial.

Most of the cases I have handled over the past 20 + years have taken an average of 9 – 12 months to finalize.  Those cases which had to go to trial took up to 3 years and sometimes more.  The cases I mediated or where those in which I was the reviewing attorney for one of the parties who participated in mediation, were completed in under 6 months.  With mediation and collaborative practice, the parties have more control over the timetable.  They can schedule meetings at their convenience without waiting for court schedules to accommodate them.  They can expand or contract the timeframe, as fits their needs.  In a recent collaborative case in which I was involved, the parties  had a very limited period of only a few weeks to be in New Jersey.  Collaborative meetings were held on a tight schedule to accommodate their needs and, indeed, to everyone’s satisfaction, the issues were resolved in that limited period of time.

Once the issues are resolved in mediation or in the collaborative process, drafting the Marital Settlement Agreement and arranging for the divorce itself, can usually be done within a relatively short period of time – perhaps under a month, if that is what the parties want — or, several months, if they prefer to wait because of tax reasons or other needs.  In fact, the only deadline is one that is imposed by the parties themselves.

So, the question: “How long does it take to get divorced?” should really be asked in this way:  “How can I get control over the timing of my divorce?”   Then, my answer is: “It depends on when you and your spouse want the divorce to occur.”  Control over the timing is one of the great benefits of mediation and collaborative divorce.

For more information about mediation and collaborative divorce, please contact our office at 609.951.2222 or by email at risa@rkleinerlaw.com

Every September, the New Jersey Courts issues a revision of its Rule Book — the Bible which governs procedures in the State court system.  Effective September 1, 2009, the new rules go into effect.  One of the goals of this year’s revisions has been to protect the privacy of litigants in the Family Part, that is, husbands, wives, mothers and fathers who are going through a divorce or adjudicating their family-related matters. 

Taking the family’s “dirty laundry” to court has always been a risky business where privacy is concerned.  Divorce and other family-related matters are rarely sealed by the court.  Courtrooms are in the public domain.  Files may be accessible long after the case is closed.  And those files contain page after page of personal data about each litigant — their address, telephone number, social security number, income, assets and liabilities and business finances.  Ouch.  This is not information that we want our children, family members, friends, neighbors or other outside parties to see or know.

To address this concern, Rule 5:5-2 now expressly provides that the Case Information Statement, the 9 page financial disclosure document filed by every divorce litigant, “shall be confidential and unavailable for public inspection.”   This is a critical step in protecting each litigant’s privacy.  The Case Information Statement (known informally as the CIS), not only lists all the pertinent and personal information stated above, but the litigant’s pay stubs, W-2′s, 1099′s and recent tax returns are attached to it.  These attachments are also to be kept private by the court. 

As we all suspect, however, enacting a Rule requiring privacy does not guarantee that the documents and information we seek to protect will always remain confidential.  The better way to protect privacy in a family matter is to resolve the issues in a private, not a public forum.  For that to occur, the parties must choose a form of alternate dispute resolution.  In other words, they must choose to resolve their disputes outside of the courtroom — either through mediation, arbitration or collaborative law.  In all of these methods, the financial documents and personal information are not submitted to a public forum, but remain with the attorneys and/or mediators or arbitrators.  Often, they are returned to the parties at the conclusion of the matter.

September 11, 2009

For more information on Mediation and Collaborative Divorce, where all your personal information remains private, contact our office at 609.951.2222.

September 3, 2009

Arbitration has been commonly used in many types of court cases, but until recently, was never viewed as a method for resolving custody disputes.   However, as more and more parties seek alternatives to litigation to save time and money, it was inevitable that eventually someone would want to turn over their custody decisions to an arbitrator.

Unlike mediation, in which the mediator is only there to facilitate a decision that the parties themselves make, arbitration allows the selected arbitrator to be the “decider.”  And, since most parties who are using arbitration are trying to save time and money, they commonly agree that the  arbitrator’s decision shall be binding. 

But recently, when one litigant did not like the custody decision that the arbitrator made by granting residential custody of their child to his wife rather than to him,  he appealled.  The resulting opinion by the New Jersey Supreme Court in Fawzy v. Fawzy has cleared the way for many more couples to use arbitration in their custody disputes.  The court went so far as to raise the “choice of forum” to a constitutionally protected right of parental autonomy. 

Mr. Fawzy lost.  He argued that no one can deprive the court of its parens patriae obligation to oversee the best interest of the children.  The court disagreed and allowed the decision of the arbitrator to stand, thereby reversing the decision of the Appellate Division.  So, custody matters may be submitted to arbitration.  But the court reserves its right to review the decision if it can be shown that it threatens harm to the child.

Whether custody decisions are submitted to the court or to an arbitrator, the parents lose the ability to determine what is in their children’s best interest.  In both mediation and Collaborative Divorce, the parties remain the primary decisionmakers on these issues.  The importance of putting aside differences to make these decisions jointly cannot be overemphasized.  Disagree as they may, the parents know their children far better than any judge or arbitrator will ever know them.

For more information on Collaborative Practice and Mediation, click on the corresponding Tabs on the left side of the Home Page or contact our office at 609.951.2222.