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  • Marriage & Divorce in 2012

    December 30, 2011

    In a Wall Street Journal article in July 2011, the author opined that “Having survived their own family splits, Generation X parents are determined to keep their marriages together.”  As a child of divorce herself, the author vowed never to repeat her parents’ mistake.  But, despite having lived together for 8 years before marriage and being married for 9 years, divorce they did.  And they weren’t alone.  The tabloids are filled with high profile break-ups from 2011: from the 72 day “marriage” of Kim Kardashian to the 6 year one for Demi Moore and Ashton Kutcher.  And how many more that don’t make the news?

    Despite the attention and expense paid to weddings, not all unions fulfill their storybook promises.  Rumor has it that the number of divorces in 2011 will be less per capita than in prior years.  But tens of thousands of couples are still splitting up.  And, like Susan Gregory Thomas, the author of the Wall Street Journal article, many of these couples want a “friendly divorce” — or at least not an acrimonious one.  Her conclusion:  Mediation provides a relatively inexpensive and nonadversarial divorce that allows parents who haven’t been able to “make it” in marriage, to still “make it” as parents.

    So, my wish for 2012 is that if you have to separate and need to consider divorcing, choose a process that avoids contentious litigation.  Choose mediation or Collaborative Practice — both utilizing experts who help couples problem-solve and design a better future for themselves and their children. 

    HERE’S WISHING A HAPPY AND PEACEFUL NEW YEAR TO ALL.

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

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  • Pre-Nuptial Agreements Can be Collaborative

    September 28, 2010

    A recent poll of divorce attorneys by the Academy of Matrimonial Lawyers revealed that 73% reported an increase in Pre-Nuptial Agreements over the past 5 years.   Significantly 52% reported an increase in the number of women initiating the Pre-Nuptial Agreement.

    When a prospective bride and groom negotiate a Pre-Nup, they are rarely adversaries.  Rather, they have a common goal of protecting their pre-marital assets, often for the benefit of children from a prior marriage or relationship.  They also have a shared interest in working out the terms of a separation (hoping one will never occur, of course) before any disputes between them can impair their cooperative spirit.

    Collaborative Practice offers the ideal process for designing a Pre-Nuptial plan that fits the needs of both parties.  Collaborative Practice is confidential, non-adversarial and is entirely outside the litigation arena.  Parties and their respective attorneys can meet together on their own terms and their own schedule.  Financial information is shared without the need for costly or formal “discovery” requests.  The resulting Agreement is the product of problem-solving of the highest order and a great model for the upcoming marriage.

    For more information on Collaborative Practice, contact Risa A. Kleiner, Esq. at 609.951.2222 or by email at risa@rkleinerlaw.com  Risa is a Collaboratively-trained practitioner and mediator.

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  • Is Palimony dead?

    The lame duck session of the New Jersey Legislature passed S. 2091 which requires that a request for support coming from a “non-marital personal relationship” requires the formality of a written agreement.  Whereas previously a party who resided together in a “marital-type relationship” could seek support — usually known as “palimony” — when such a relationship broke down, now that claim must rest on more than an oral promise to support for life.

    The Legislature found that the requirement for a formal agreement is an essential protection to the parties.  But is it?  Or does this requirement merely set up a barrier which effectively leaves the supported partner without recourse?  Is it realistic to think that parties who establish an ongoing (and perhaps lengthy) “marital-type” relationship will actually hire attorneys or draft an agreement themselves?  What incentive will the supporting partner have to agree to pay lifetime support to their lover? 

    Query:  Is this bill merely the Legislature’s way of saying that alternative lifestyles are no longer recognized by the State?  Will lawyers now be writing Agreements similar to Pre-Nuptial Agreements but without the anticipated wedding? 

    One thing is for certain, when a long-term “marital-type” relationship breaks up, one party is likely to be at a significant financial disadvantage. 

    As in other aspects of domestic life, when the Legislature and the courts cannot help the parties, they should look to Alternate Dispute Resolution (ADR), including mediation and Collaborative Law.  These processes give the parties a respectful and civil way to work out a settlement that allows both of them to transition into the future.  Less costly and non-adversarial, mediation and Colalborative Law, are also less expensive and far less emotionally draining.   The relationship (and often a long one) may be over, but that is no reason to kick one party to the curb if there is a legitimate claim for support. 

    For more information on mediation and Collaborative Law, contact our offices at 609.951.2222 or on the web at www.rkleinerlaw.com.

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  • Pet Visitation

    September 25, 2009

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

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

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

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

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

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

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

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  • Arbitrating Custody Issues

    September 3, 2009

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

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

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

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

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

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

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