Risa A. Kleiner, Esq.

February 10, 2012

Did you ever think you’d see the word “privacy” anywhere near Kim Kardashian?   A source close to her has said : “A public trial is the last thing that Kim wants….She wants the mediation to be private, confidential and legally binding.“  (perhaps confusing mediation with binding arbitration, but still…)  Is it possible that Kim, whose $10 million wedding was a television event, wants her divorce “out of the spotlight”, as she claims? 

Recognizing that the divorce could easily take longer than the 72 day marriage, she seeks mediation to keep the divorce from exceeding the length of the marriage.  Apparently, in California, one can “formally” petition the court to have the divorce heard by a mediator.  (In NJ, a litigant will usually start mediation before filing for divorce, but will eventually be directed to economic mediation by the court before a trial begins).  While I”ve never been a KK fan, I’m all in favor of avoiding litigation whenever possible.  And one can only imagine the costs she will save if that happens.

Mediation does permit divorcing couples to have private and confidential discussions that lead to a Memorandum of Understanding, a document which is ultimately incorporated into or revised to become a Marital Settlement Agreement.  Some mediations take longer than others (usually 3-5 sessions, but sometimes more) but nearly all conclude far more quickly than a litigated divorce.  And much less expensively.

For more information on mediating your divorce, contact Risa A. Kleiner, Esq. at 609.951.2222 or via email at risa@rkleinerlaw.com.

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.

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

June 21, 2011

Many people are under the mistaken impression that, if they use a mediator to help them resolve their divorce issues, they won’t need an attorney.  But the role of the mediator is not the same as the role of the attorney.

The mediator is a neutral professional who helps the parties facilitate their agreement.  Often the divorce mediator is an attorney.  But, the mediator does not give specific legal advice to either party.  The mediator must remain neutral at all times.  He or she can suggest alternatives and options, but cannot tell you which choices are best for you.  For that, you need the advice of an attorney.  Your attorney will explain your legal rights and advise you how your case would be likely to turn out if you went to court.  Armed with that information, you are better prepared to negotiate for yourself at the mediation table.

Although having your own attorney is not mandatory in mediation, most mediators will encourage you  — and perhaps insist — that you consult an attorney at least once during the process.  Otherwise, there is the risk that you will concede on issues without recognizing the consequences.  There is even the possibility that your Agreement may be so one-sided as to not stand up to a future court challenge. 

Many mediation clients use the internet as a substitute for a consult with an attorney.  They see this as a cost-saving measure.  But, if you are not knowledgeable about your legal rights, you could lose out financially much more than the cost of a consult.  Attorneys are also necessary to review and finalize the written Agreement and to draft and file the Complaint for Divorce.  The mediator is not permitted to participate in court proceedings or to file court documents.  Some parties mistakenly think the mediator can substitute as an attorney for both parties, but this is not the case.

The role of the attorney in a mediated case is much more limited than in a litigated case.  Therefore, the cost of the attorney is also much lower.  Statistics have shown that the final cost of a mediated divorce, including the fees charged by the mediator and both attorneys, is likely to be approximately 1/3 of the cost of a litigated divorce.  In addition, the parties are usually much happier with the outcome since they have participated fully in negotiating their Agreement.  And, when issues arise after the divorce – concerning parenting time, child support, college and modification of certain support obligations — parties who have mediated the underlying divorce, often are able to return to the mediation table to resolve these issues as well.  As a result, over time, they learn to negotiate with each other and, in the process, they save thousands of dollars. 

Mediation works especially well for spouses who take the time to meet with a lawyer during the process to understand their legal rights.  The Agreement is also far less likely to fall apart later on since both parties have gone through the process as well-informed participants.

For more information concerning mediation, contact Risa A. Kleiner, Esq. at 609.951.2222.

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.

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.

November 10, 2010

Mediation is a cost-effective process for resolving divorces.  The mediator serves as a neutral faciliator.  While the mediator may be an attorney, he or she does not provide legal advice to either party.  Instead, the mediator encourages the parties to express their concerns, goals and issues. Often, the mediator will suggest options and alternatives for settlement, but the parties must decide for themselves what solutions will work for them.

In order to be better prepared to identify optimum solutions and understand your legal rights, you as a participant in mediation are encouraged to consult with an attorney.  Your lawyer’s role will be limited to providing you with advice outside of the mediation sessions and later, with filing a Complaint for Divorce and finalizing the divorce.

Not every mediation client consults an attorney and you are not obligated to do so.  However, before you reach a final resolution of custody, property and support issues, it is wise to know what the likely or possible outcome would be if you had the issues decided by a court.  That knowledge helps you understand the alternatives if mediation breaks down.  It also helps you know how likely you are to prevail on certain issues.

Clients who have at least one consultation with a mediation-friendly attorney are usually more satisfied with the outcome of their divorce.  They understand the divorce process better and can see how mediation can assist them in reaching their goals.  It is important to select an attorney who is familiar with and supportive of the client-directed mediation process.  If the attorney is inclined to litigate divorce cases, he or she may be less open to the individualized solutions that mediation clients often create for themselves with the help of a mediator.

For more information or to set up a mediation session or consultation, contact Risa A. Kleiner, Esq. via email at risa@rkleinerlaw.com or by phone at 609.951.2222.

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.