Risa A. Kleiner, Esq.

January 27, 2012

It’s a new year but an old issue.  Alimony.  A debate is raging as to whether there should be alimony guidelines in the same way there are child support guidelines.  Litigants and lawyers alike complain that judges have too much discretion when it comes to making an alimony award and that guidelines would create more uniform results.

The real issue isn’t that one alimony award is different from another.  After all, one case is different from another and the resources and needs of the parties are different, too.  But lack of predictability is fodder for unending litigation and skyrocketing legal fees and may force settlements that feel necessary, but unfair.

NJ courts are wedded to the statutory factors that allow judges to set alimony awards that seem appropriate to each family.  If the legislature creates guidelines, which factors will they use to measure whether alimony is appropriate and, if so, how much should be paid and for how long?  Length of marriage? Disparity of incomes? Child-raising responsibilities?  These are, of course, three of the factors that NJ courts currently apply.

The rhetoric employed by anti-alimony groups exaggerates the onerous effects of alimony.  No one wants to pay; but often, one spouse would be left unable to cover even their basic living expenses without some assistance.  After a long marriage, many years out of the workplace or in a lower paying job, it may never be possible to make up for lost time. 

When needs (not just wants) can be discussed in a reasonable way, parties can reach a compromise that they can live with.  This is often better accomplished in out-of-court settlements through mediation or collaborative divorce.  With the help of a neutral mediator or collaboratively trained attorneys, the alimony issue can often be resolved without costly litigation.  Equally as important, the resulting agreement feels fairer to each party because they played an active role in creating the outcome.

For more information about mediation and Collaborative Divorce, contact Risa A. Kleiner, Esq. at 609.951.2222.

November 8, 2011

I recenty heard Dan Ariely, a behavioral economist, speak on the way people make decisions.  Based on his extensive research, it turns out that people only think they are in control of making their own decisions. In truth, the decisions we make are heavily influenced by the environment in which the decision is made. 

So, for example, when asked to “opt into” a 401k plan, most people are apt to stay out.  But, if the choice is to “opt out” of that 401k, they stay in.  Inertia, perhaps.  Or maybe we just assume that the default choice has been selected by someone who knows that it’s really the better choice.  And if there are too many choices, we are likely to make no choice at all.

The irrationality of decision making.  According to Ariely, the irrational way people make decisions is actually quite predictable.  Rome or Paris?  Hard to decide.  Rome without coffee v. Paris  The majority had no trouble choosing Paris.  Was it just about the coffee?  Ariely says that having bad options leads us inevitably to choose another option without really considering the significant merits of the choices.

So what’s the relationship between Ariely’s research and divorce?  He concludes that we should not assume we each make good decisions – especially when we are under an emotional strain, as in a divorce situation.  Ariely says we should develop a healthy skepticism about our own instincts and seek out advice from trained professionals such as attorneys and financial professionals.  And for the professionals who help shape the choices people make — well, creating the right list of options can influence the outcome.

For more information about mediation and collaborative divorce, contact Risa A. Kleiner, Esq. at 609.951.2222 or risa@rkleinerlaw.com

October 11, 2011

A recently released U.S. census report confirms that New Jersey has the lowest divorce rate in the country.  With New York a close second, the two states are indicative of a lower divorce rate in general in the Northeast.   The report shows that 6.1 of every 1,000 men and 6 of every 1,000 women got divorced in New Jersey in 2009.  Alaska’s divorce rates for women at 16.2 per 1,000 were the highest, while Arkansas took top “honors” for men at 13.5 per 1,000.

One possible explanation for New Jersey’s lower divorce rates may be that the marriage rate in New Jersey is also low — in fact, it’s the second lowest in the U.S.   A second explanation offered is the higher average age for marriage in New Jersey – 28 for women and 30.2 for men.  This compares to a national average of 26.5 years of age for women and 28.4 for men.  Both marriage and divorce rates are higher in the South.

It’s also been speculated that the higher cost of divorce in New Jersey and the Northeast may be a limiting factor.  One of the first things that experienced divorce attorneys tell their prospective clients is to expect a huge financial impact from divorce and to consider their options carefully.  Whether you are the breadwinner or the dependent spouse, your assets will be diminished as a result of a divorce and the cost of the divorce process itself will reduce your available income during — and often after — the divorce.

As a proponent of Alternate Dispute Resolution, it’s always my goal to minimize the costs of divorce.  That goes hand in hand with trying to effectuate a settlement that both parties can live with and which allows them to move forward with dignity and more of their assets intact.  I encourage clients to look carefully at their ADR options, especially mediation and collaborative divorce.  If the decision has been made to go forward with a divorce, it is good to know there are less costly and less adversarial options. 

For more information about mediation and Collaborative Divorce, contact Risa A. Kleiner, Esq. at risa@rkleinerlaw.com or by calling 609.951.2222. 

July 18, 2011

New York recently became one of the few states to adopt a formula for pendente lite alimony awards.  That is, for alimony to be paid while the divorce is pending in court.  According to a recent New York Times article entitled “Ending the Alimony Guessing Game”, the IRS confirms that former spouses pay about $9 billion each year in alimony.  As anyone who has appeared in family court knows, the awards vary dramatically from county to county and judge to judge.  Should NJ adopt alimony guidelines to make the awards more uniform?

As stated in a prior blog, NJ courts apply a list of factors  to determine what, if any, alimony the higher earning spouse should pay.  How those factors are applied depends on who is doing the calculation.  The above-mentioned NY Times article noted that awards are so vastly different that, when asked how much alimony a lifelong homemaker married to a doctor deserved, judges in an Ohio survey estimated as little as $5,000 per year and as much as $175,000. 

The unpredictability of alimony awards makes negotiation difficult.  The NY Times writer asserts that New York’s law minimizes the cost of litigation by establishing a mathematical formula to calculate temporary alimony.  The formula may be adjusted by each individual judge under special circumstances.  The formula subtracts 20% of the lower-earning spouse’s income from 30% of the higher earning spouse’s income — so long as the lower earner doesn’t wind up with more than 40% of the combined income.  Under this formula, if the incomes were $150,000 and $50,000, the alimony award would be $35,000 — leaving the gross incomes at $115,000 and $85,000 respectively.  Note that taxes are not considered in this calculation.

The ease of this calculation is attractive and would certainly make mediators’ work easier.  The NY Guidelines are intended only for temporary alimony.  But, “temporary” often morphs into “permanent” just by default.  So, the question is whether simplifying the alimony calculation would overlook the many issues:  health, age, length of marriage, earning capacity, for example, that judges in NJ are required to consider.  And “Guidelines” often become rules which judges are reluctant to deviate from and which parties adhere to with strict allegiance. 

In mediation and Collaborative divorce, the parties can adjust the alimony award, if any, to their individual needs.  And, in the end, this should be the goal — allowing both parties to move forward in their lives.

For more information about divorce issues, contact Risa A. Kleiner, Esq. at 609.951.2222 or risa@rkleinerlaw.com

July 8, 2011

New Jersey has an alimony statute that lists 12 factors for the court to consider in awarding alimony in a divorce.  In addition, NJ case law requires that the court consider the marital lifestyle, the dependent spouse’s ability to contribute to his or her own support and the ability of the supporting spouse to pay any shortfall.  Unlike in some other states, there is no formula or guidelines for alimony in NJ, as there is with child support.  The statutory factors can be reviewed at N.J.S.A.2A:34-23(b).

There are four types of alimony in NJ.  First, the court must consider whether Permanent Alimony is warranted.  This usually occurs if the marriage is 15 years or longer and if there is a significant disparity in the parties’ incomes.  But other factors, including the age and health of the parties, the marital standard of living and parental responsibilities for children, also are taken into consideration. 

A second type of alimony is Limited Duration Alimony.  LDA, as it is called, is for a specified period of type and is usually awarded in shorter marriages where permanent alimony is not warranted.

A third type of alimony is Rehabilitative alimony.  This support is awarded to assist a dependent spouse who has a specific plan for improving or increasing their educational or job skills.  It is usually for a few years and may be in addition to other forms of alimony. 

Fourth, there is Reimbursement alimony.  Awarded less often, this type of alimony is intended to compensate a spouse who supported the other party while they were in school or receiving advanced training. 

In a litigated case where alimony is an issue, the parties will testify as to their marital lifestyle and provide documentation to prove income and expenses.  The court will attempt to provide a “reasonably comparable” standard of living for each party after the divorce, although this may not be possible where two households must be supported on the income that previously supported only one.  In mediated or collaborative cases, the parties, with assistance from counsel, try to work out a fair amount of support so that both parents can provide nearly equivalent lifestyles for their children after the divorce.

Although it may feel unfair to some parties that, despite their divorce, they still have to contribute to the income of the other spouse, the State views this as an ongoing obligation.  In fact, it is a way to avoid having a divorced spouse become a public charge because they are left with insufficient funds on which to live.

For more information on alimony and other divorce issues, contact Risa A. Kleiner, Esq. at 609.951.2222 or risa@rkleinerlaw.com

May 3, 2011

NJ Divorced parents who help fund a child’s college education are now entitled to see their child’s transcript.  According to a recent trial court case, Van Brunt v. Van Brunt,  a requirement to provide this information does not violate the Family Educational Rights and Privacy Act.  A child or that child’s custodial parent can no longer simultaneously assert that the child is unemancipated (and therefore entitled to support) but not required to prove their status as a full-time student in good standing.

Sadly, parents often refuse to cooperate and communicate with each other after a divorce. The non-custodial parent may not be kept in the loop with respect to a child’s educational status.  In the past, some children and their Primary Parents have refused to provide proof of the child’s academic status, claiming protection under the Act.  The non-custodial parent then remains in the dark, forced to pay child support for a child who may not be attending school on a full-time basis or who has failed to meet academic requirements sufficient to remain in the school.

For parents who are divorced, paying child support and unable to get the requisite information from their child, this is good news – and probably a long overdue decision from the court.  Child support is intended to assist the custodial parent in housing, feeding and clothing a child until his or her “emancipation.”  When  a child is no longer in school full-time, the court (and often the parties’ Marital Settlement Agreement as well) define that child as “unemancipated.”  At that point, the legal obligation to support a child terminates and any support is entirely voluntary on the part of the parent.  In many states, such as Pennsylvania, emancipation occurs upon a child’s graduation from high school.  In NJ, emancipation does not occur until a child has completed an undergraduate college degree, so long as the child is diligently pursuing that degree on a full-time basis. 

It stands to reason that a child who is relying on his or her parents for support should keep them informed of their educational status.  Good communication between the parents will foster good communication between the child and both parents.  Divorced parents who resolved issues through mediation or Collaborative law recognize the importance of working together as co-parents. Unfortunately, parents who went to war with each other, neeed the court to teach this lesson to their children.

For more information on Mediation and Collaborative Law, contact Risa A. Kleiner, Esq. at 609.951.2222 or risa@rkleinerlaw.com

April 26, 2011

Following up on the previous blog entitled “Divorce – What Does it Cost?” here are some suggestions to keep the cost of a divorce down.

• Avoid Unrealistic Expectations.  After a divorce, everyone is poorer.  That’s because all the assets have to be divided and the incomes that supported one household now have to support two.  While you will gain control over your finances in a divorce, it is almost a certainty that you will have less money to control.  Be prepared and avoid a costly battle over issues you are unlikely to win. 

• Choose Your Battles.  You can’t hit a home run on every issue.  Get good advice from an experienced Matrimonial attorney and pursue the issues that are most important to you and on which you have the strongest position.  

• Be Willing to Compromise.  Compromise is not a sign of weakness; it is a recognition that  every settlement requires both parties to be flexible on their positions.  Spending all of your resources to “win” a particular issue is usually ill-advised.  Courts are likely to give each party some, but not all, of what they ask for.  Keep that in mind during settlement negotiations or mediation.

• Look toward the Future Instead of Re-Living the Past.   Divorce – whether mediated or litigated — cannot make up for what went wrong during the marriage. You’re getting a divorce because the marriage didn’t work.  Since you can’t change the past, it makes sense to focus on making the rest of your life better for you and your children.

•   Communicate, communicate, communicate.  Share your concerns with your attorney and listen to his or her advice.  Keep talking to your spouse — no matter how difficult.    You’ll need those communication skills in the future to continue to co-parent your children.  In the meantime, you’ll keep the cost of the divorce down if every issue doesn’t have to go through the attorneys. 

• Consider Mediation or Collaborative Divorce.   Avoiding litigation will also help keep costs down.  Both Mediation and Collaborative Divorce are forms of Alternate Dispute Resolution that avoid formal disovery procedures such as Depositions and costly court appearances.  Attorney time is more limited. Eperts are retained jointly, thereby avoidng duplication.  And, in the end, you as the client, have greater input into the final resolution of your case.

You can expect to pay your attorney a retainer from which hourly fees and disbursements will be deducted as they accrue.  You are entitled to clear and regular invoices with detailed explanations of what is being charged and what work is being done.  Review these invoices and discuss any concerns with your attorney promptly.  Keep the lines of communication with your attorney open, but take time to consolidate your questions and avoid multiple contacts over small issues since each and every contact will usually result in a charge. 

For more information on Mediation and Collaborative Divorce, contact Risa A. Kleiner, Esq. at 609.951.2222 or risa@rkleinerlaw.com

April 19, 2011

One of the first questions that a prospective client asks his or her matrimonial attorney is:  what will this divorce cost?  The answer is almost always, “it depends.”  So what are the factors that drive the cost of a divorce?

• Process:  Litigation is the most expensive way to get divorced.  It involves extensive attorney prep and court time, extensive preparation and review of documents. All or most of the communication between the parties is conducted through attorneys.  With the hourly clock running, this is costly.  Mediation is likely to be the least expensive process since the parties consult their attorneys on an as-needed basis and meet with the mediator on their own.  Collaborative Divorce is likely to fall somewhere in the middle.  Extensive prep and court time are avoided; discovery is more informal; but attorneys and other team members meet with the parties throughout the process.

• Complexity of the Issues:  Are there pre-marital assets? Is custody an issue?  Have there been issues of  domestic violence, invasion of privacy, abuse, dissipation of assets?  Is there an unique issue of law that may require a judicial determination?  Any or all of these and other legal issues can complicate the divorce and increase the cost.

• Emotional issues:  Even without complex legal issues, the emotional state of one or both parties can create obstacles to settlement which prolong the divorce and increase its cost.  Anger, resentment, feelings of betrayal, unstable personalities — these and other emotional responses can lead to a more expensive divorce.

• Use of Experts:  Some cases require experts and they can be costly.  Perhaps  a business valuation needs to be done by a qualified accountant; or one party is unemployed and an Employment expert is needed to determine their earning ability; or a home needs to be appraised and an appraiser must be hired; or a cash flow analysis is needed to determine actual income and lifestyle; or pensions need to be valued or divided by an actuary.  There can also be a need for psychologists who specialize in custody evaluations or a Parenting Coordinator to assist with parenting arrangements.  All of these issues may require the parties to retain experts.  In a litigated case, each party may have his or her own expert, while in Collaborative and mediated cases, the parties will retain joint experts.  Costs will  vary accordingly.

• Ability of the Parties to Communicate.  If all issues have to go through the attorneys, the divorce will ultimately be very expensive.  Phone and email time, correspondence between each party and their attorney and between the attorneys will be charged at the attorneys’ hourly rates.  Each issue will require multiple contacts.  Even a few phone calls or emails each week can quickly add up to hundreds of dollars. 

The cost of a divorce can range from a few thousand dollars in a very simple case where there are no children and most issues are resolved by agreement up to tens of thousands of dollars where every issue is fought to the bitter end in a trial.   A recent Forbes Magazine article posted on MSN Money Central places the “average” cost of a divorce between $15,000 and $30,000 and mediated divorces in the range of $5,000 to $10,000. Add to that the higher cost of living in New Jersey.   See http://articles.moneycentral.msn.com/CollegeandFamily/loveandmoney/10keystoatrulycheapdivorce

 For more information on mediation and Collaborative Divorce, contact Risa A. Kleiner, Esq. at 609.951.2222.

March 23, 2011

In New Jersey, the parties to a divorce are not permitted to cancel or alter their life insurance while the divorce is pending.  In fact, when a Complaint for Divorce is filed, the filing party (plaintiff) must certify that no changes have been made to their health, life, auto or home insurance coverage or beneficiaries during the preceding 90 days.  If any changes were made during that time, the plaintiff must explain them.  When the defendant files a responding pleading with the court, he or she must also certify as to the status of their insurance. coverage and must notify the court if any subsequent changes are made to the coverage while the divorce is pending.  This rule was established to avoid having one spouse remove the other from their insurance coverage (life, health, automobile or home) without their knowledge.    

Life Insurance is often used as security for alimony or child support following a divorce.  If a husband is obligated to pay spousal support after the divorce, but dies pre-maturely, the former wife will be left without the funds on which she relied to pay some or all of her expenses.  Life insurance proceeds are intended to cover the shortfall.  Similarly, with child support, life insurance proceeds fill the gap to provide child support and cover one parent’s share of college and other expenses that may occur after their death. 

Often, spouses/parents have life insurance through their employment rather than private coverage.  This can create a void if there is a loss or change of employment.  Therefore, parties are often expected to obtain private life insurance policies that will remain with them regardless of any change in their employment status. 

Divorcing parties need to understand the difference between the “owner” of a policy and the “beneficiary” of the policy.  The owner of a policy usually pays the premiums and receives all important updates and information on the policy and may make changes to the coverage and the beneficiary.  In a divorce, it is a good idea to provide that the beneficiary will receive updates on any changes to the policy and will have access to policy information directly through the insurance company to confirm that premiums are up to date, no loans have been taken against the value of the policy (if it has a savings component) and that the beneficiaries have not been altered.

Life insurance may also be held in an insurance trust.  In that case, the proceeds of the policy are deposited into the Trust upon the death of the insured.  The Trustee then disburses the proceeds as the Trust document directs.  It is helpful for the parties to a divorce to review their insurance policies and to consult both their attorneys and a life insurance specialist about these issues.

For further information about Mediation and Collaborative Divorce, contact Risa A. Kleiner, Esq. at 609.951.2222 or risa@rkleinerlaw.com

3.4.11

Collaborative divorce is an innovative team approach to divorce.  Its goal is to transition the family through a difficult life change with the least negative effects on the children and the family.  In collaborative divorce, both parties are represented by collaboratively-trained attorneys.  A team is formed with any joint experts (financial, custodial) that may be needed. Parties and their attorneys commit in writing that the issues will be resolved out of court or the parties will start over with new litigation counsel.

Discovery (exchange of documents) is handled informally in collaborative divorce.  There are no interrogatories, formal requests for documents or depositions.  Nonetheless, complete and full exchange of documents and information is required.  Parties must commit to an open and honest exchange of information.  Handling the exchange of information in a less formal manner saves time and money.

In a collaborative divorce, each party is encouraged to speak for him or herself.  Lawyers support and advocate for their clients but, unlike traditional litigation, they do not control the dialog.  The parties, with assistance from counsel, set the agenda and explain their concerns and interests in the team meetings.  The primary focus is on what is best for the children and the family while still meeting the financial and emotional needs of the parties.  Open communication is encouraged so that the parties can continue to work together in the best interest of the chidren after the divorce.

Collaborative divorce is less expensive and faster than a traditional litigated divorce.  There is no waiting for a judge to decide your case and you don’t have to worry that the court’s decision may be incompatible with your needs.  Collaborative divorce is confidential. It is also supportive.  Instead of increasing the stress, the process is intended to lower anxiety. Collaboratively-trained child specialists, forensic accountants and divorce coaches can all be included in the team where the parties agree that these professionals can be helpful.

For further information about Collaborative Divorce, see my website, www.rkleinerlaw.com or call my office at 609.951.2222.