Risa A. Kleiner, Esq.

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.

November 16, 2010

I was recently reading an article about trial stategy.  The attorney’s advice included suggesting ways of causing “distress” and “surprise” to the adverse party.  Words such as “tremendous stress and anxiety” were used to describe the intended affect of preparing a case well.  “Jolting the opposition” was cited as a goal to “jumpstart settlement negotiations” with the “hostile party.”  Causing “shock” to the client’s spouse was also promoted as being part of the strategy.

And to think these parties once fell in love and tried to build a future together.  And that they still may have children to raise after their divorce.  After they’ve been “shocked” and “jolted” and put under “tremendous stress and anxiety” by their former husband or wife’s attorney.  What a lovely way to start a future as co-parents.

Reading this article reminded me of why I left litigation behind and chose to guide my clients to the future through mediation and collaborative divorce.   Divorce was never meant as a punishment.  It was intended to give parties a fresh start – and hopefully, with their dignity and some financial resources remaining.  Mediation and Collaborative Law permit attorneys and mediators to put down their swords and put on their problem-solving hats.  These alternate processes allow clients to use their energy to split up their assets and transition to separate lives — and hopefully, to do so in a less stressful way. 

Putting your spouse through the wringer of a trial is guaranteed to put you through a wringer too.  And to drain your emotional and financial resources along the way.  Divorce is not a war.  It is a life-transition.  And you can choose the way you make that transition and what your future will look like when it’s done.

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

October 27, 2010

Could it be that our society is becoming more collaborative in its approach to problem solving?  Despite the discouraging news about continuing hostilities in Afghanistan and Iraq, labor uprisings in France and a Presidential kidnapping in Ecuador, the average person is making more decisions than ever in concert with his or her colleagues.

One need only look at email communication, instant messaging, texting, twitter, LinkedIn and other social networking to find more and greater evidence of collaborative decision making.  One person no longer makes the decisions in a vacuum.  Instead, colleagues and friends are consulted about even the most trivial decision.  When should we meet? Where should we have dinner? What movie should we see?  How can I solve a problem I’m having at work? at home? with friends?  We ask everyone’s opinion and often make a group decision where once we would have been left to our own devices.

In this climate, it is only natural that we look to our trusted friends or colleagues or our professional connections to help us in our most critical decisions.  We’re of the mind that not only are two heads better than one, but input from many “experts” can enlighten us to possible solutions we never would have found on our own. 

It is not much of a stretch to conclude that this form of social networking can also work to help us transition through the difficult times in our life.  Rather than feel alone in our misery of separation or divorce, we seek out others who have experience with this life changing event.  We look for help and advice from friends and– hopefully — from trained professionals as well.  Why settle for the opinion of just one “expert” when a team can provide multiple suggestions for a good outcome? 

This team approach works when the “experts” are collaboratively trained attorneys, mental health and financial professionals.  In the final analysis, it is you who should make the ultimate decisions about your family, your finances and your future.  Why go it alone when you can use the collaborative process to gather advice from experienced professionals to make the best decisions you can. 

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

October 12, 2010

If you’re contemplating a divorce, it is essential to consult an attorney who specializes in family law.   A Matrimonial Attorney who has been Certified by the Supreme Court of New Jersey has passed a rigorous written exam and has demonstrated experience in the area of family law.  An attorney who serves on the court’s Early Settlement Panel has been recognized as experienced by the NJ courts.  An attorney who has mediation training and has qualfied as an Accredited Professional Mediator (APM) has taken at least 40 hours of mediation training and has mediated  numerous cases.  

In handling a divorce, experience and empathy count.  Look for someone who specializes in family law and has handled divorce cases for at least 10 years.  Make sure your attorney’s style and approach are a good match for your goals.  Are you looking to fight all the way to the courthouse and willing to foot the bill for this fight?  Then seek an experienced litigator.  Are you looking for cost containment and a more peaceful transition through the divorce process.  Consider a mediation-friendly and/or a Collaboratively trained attorney who is adept at giving their clients a greater role in settling cases. 

Choose wisely.  Talk about your goals with your prospective attorney.  See if you feel comfortable having that person handle one of the most important transitions in your life.  Listen for reasonable and carefully thought out solutions to the issues.  Meet with several attorneys so you can compare approaches and styles.  To be a successful partnership, the attorney-client relationship requires trust and a personal connection. 

Family law attorneys are required to have you sign an Engagement letter or Retainer which spells out your rights and obligations.  You will be asked to pay a retainer fee, money which goes into your account and is used to pay your monthly bill.  Make sure you understand the hourly fee, what disbursements will be charged and when you may be required to replenish your retainer.  Find out how often you will receive bills.  Ask for an estimate of what the case will cost so you can plan for these expenses.  While it is difficult for any attorney to predict the ultimate cost of your divorce, your attorney can give you an idea of the diffence in cost between litigation (most expensive), Collaborative Divorce, and Mediation (usually least expensive.)  And ask how long your divorce can be expected to take in each of these processes.

You are the client and can choose the process.  Make sure you understand the differences and choose an attorney who shares your goals.

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

October 4, 2010

What makes Collaborative Practice so attractive to clients?  Recent collaborative clients have summarized the best parts of a Collaborative divorce as follows:

• Privacy – nothing goes to court until everything is settled in a written and signed Agreement.  All discussions take place in the lawyers’ offices.
• Timing – on average, a Collaborative Divorce takes less than 6 months; litigated divorces take at least twice that long.
• Informal Discovery – financial documents are exchanged as needed, upon request.  There are no Interrogatories, Notices to Produce or Depositions that are time-consuming and expensive.
• Interest-based Negotiations – it’s all about what the parties “need” to move forward, not about unrealistic “wants” and demands.
• Use of joint experts – forensic and custodial experts are retained jointly to help the family
• Protection of Children’s Interests – parties stay calmer as their communication improves and their children are spared damaging emotional fights.
• Cost containment – a collaborative divorce is far less costly than litigation.

Divorce doesn’t have to be an anxiety-ridden process.  While never easy, divorce does not have to destroy the parties’ability to communicate and work together for the best interests of their children, both during and after the process.  Collaborative Divorce is a better divorce because it envisions and addresses a transition to the future for the entire family.

For more information about Collaborative Divorce, contact Risa at 609.951.2222 to set up an appointment.  See also www.mjcla.org for additional information.

September 1, 2010

 Collaborative Divorce is growing in popularity.  The process allows the parties to negotiate the terms of their settlement with their lawyers by their side at all times.  It is a team approach that can include specialists, such as accountants or mental health professionals, when needed.  It is confidential and  less stressful and less expensive than litigation.  Why then, doesn’t everyone use this process? 

Some divorcing couples fear that their lawyers will be “too nice” and may not advocate strongly enough for their position or that they’ll be forced to compromise too much and accept a settlement that is less than they would get in a court.  Not true.  Lawyers remain advocates throughout the Collaborative process.  But they use respectful communication to advocate for their client’s interests and they use their problem-solving skills to create unique settlements that meet both parties’ needs.  This creates a model that the parties can use in resolving issues that arise in the future.

Some parties fear they are giving up their “rights” if they agree not to go to court.  Again, not true.  More than 97% of divorces ultimately settle in New Jersey.  So, settlement itself is the norm.  But, the way that settlement is reached may be painful and expensive if the parties go to war on opposite sides of a courtroom.  So why not commit to resolving the problems outside of court from the outset.  Of course, in the unlikely situation that the Collaborative process fails, the parties are free to retain litigation counsel and fight it out in the courts.  

Collaborative professionals recognize divorce for what it is — a difficult transition from married life to single life.  The transition is painful — emotionally and financially– and often has a negative impact on the children caught in the middle.  The goal of the Collaborative Team is to move both parties through the transition and into their future with the least emotional and financial pain and to see their their client receives a fair share of the assets and has sufficient income to meet their needs.  Neither party wins in a divorce and both deserve a reasonable outcome.

Risa A. Kleiner, Esq. can be contacted at 609.951.2222 or risa@rkleinerlaw.com for further information on Collaborative Divorce.  More information is also available on www.mjcla.org and www.collaborativepractice.com.

July 14, 2010

Recently, the Appellate Division turned down an appellant’s request to overturn a trial court order dismissing his request to reduce his support obligations.  The reason?  He framed his request badly – put it in his Certification instead of in his Notice of Motion.  Didn’t provide adequate documentation.  He was Pro se – how was he to know?  Too bad, said the court.  If you want to ask the court for help, you’d better submit everything in proper form and provide all appropriate supporting documents.

This is not intended as a criticism of an overburdened court.  Courts have rules for a reason and if lawyers have to follow the rules, so do litigants who are unrepresented by counsel.  But compare this process to mediation or collaborative law where requests for information are made informally and the parties are given an adequate opportunity to submit their supporting materials and discuss their positions.  

The litigant in the recent case might not prevail in mediation or in a collaborative divorce, but the emphasis would be where it belongs — on the substance of his request.   Support reductions, like the original establishment of support obligations, can be effectively mediated or resolved through the collaborative divorce process.  And everyone has the opportunity to be heard.

Contact Risa A. Kleiner, Esq. at 609.951.2222 or via email at risa@rkleinerlaw.com for more information about mediation and collaborative divorce.

At a recent seminar, I learned that statistics confirm that lawyers incorrectly predict the way a court will decide a case more than half the time.  They tend to overestimate the strength of their client’s position in most of these cases.  It’s only natural that your attorney, who is your advocate, wants to see a good outcome for the client.  But the result is that many people go to court with unrealistic expectations and come away disappointed. And this number is higher in family law cases where the courts have significant powers of equity to do what the judge feels is “fair” under the circumstances. 

It might not surprise you to learn that the seminar I attended was all about Alternate Dispute Resolution (ADR).  ADR, which includes mediation, arbitration and collaborative practice, aims to get the issues setttled out of court.   It also might not surprise you that what the court feels is “fair” may not always coincide with what the litigant feels is “fair.” 

Arbitration may be out of court, but it is the equivalent of turning over your case to a private judge.  It’s less formal than court, but you as the client still have to present evidence and let the arbitrator decide your case.

Mediation and collaborative practice, on the other hand, allow the clients to make the decisions themselves.  Mediators help facilitate the decisions.  Collaboratively trained professionals form a team to advocate for and assist the clients in making the decisions.  But the final decision-maker in these two processes is you, the client. 

If you’re not a gamblin’ man (or woman), why would you settle for a less than 50/50 shot at getting the desired result?  When the issues are custody, support and equitable distribution of the assets and debts, are you willing to gamble?  Ask someone who gambled and lost.

For more information on mediation and collaborative divorce, contact our office at 609.951.2222.  Also, see www.collaborativepractice.com and www.mjcla.org for additional resources.

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