Risa A. Kleiner, Esq.

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.

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.

April 12, 2010

The use of experts can often assist mediating parties to reach agreements on difficult issues.  The mediator can help the parties select a qualified financial professional if the issue involves support or equitable distribution.  For example, one spouse may own a business or have an interest in a business.  A business valuation expert can assess the fair market value of the spouse’s interest in that business.  When the parties agree on a joint valuation expert, they can avoid the time and expense involved in having feuding experts.  They will be provided with neutral information on which to make a reasoned decision.

A financial planner can also assist the parties.  By assessing the future financial needs of each party, this expert can recommend the optimum distribution of the assets and the types of investments that will provide needed funds in the future. 

Parties in mediation can also retain a forensic accountant to review the parties’ income and to analyze the cashflow that has been utilized during the marriage.  This will help the parties determine their individual needs and assist in setting appropriate spousal and child support.  An accountant is well-trained to understand and apply tax consequences, an essential part of determining the actual funds that each party does or will have available to them to pay their expenses.

Sometimes, an appraiser can assist in determining the value of property to be divided.  For example, a real estate appraiser can determine the fair market value of the marital home or other real estate which the parties own.  An art or antique appraiser can value tangible items for purposes of equitable distribution.  Appraisers who specialize in specific property, such as train collections, gun collections, stamp collections, or the like, can provide invaluable assistance when the parties have unusual items that need to be valued.

When there are issues concerning children, having input from a social worker, psychologist or other child specialist can be invaluable.  Here is yet another expert that the parties can retain jointly, with input from the mediator, to help them resolve custodial and parenting issues.

In mediation, the joint expert is not retained to go to court.  As a result, the expert makes recommendations based on their review of pertinent information and uses their expertise to make recommendations for settlement.  The joint expert in a mediation does not advocate for either party and their role is not to go to court — even if the mediation process breaks down.  Properly used, joint experts can be invaluable in helping the mediator faciliate fair and reasonable agreements.

For more information about mediation, contact our office at 609.951.2222.

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.