Same sex couples with children face an uncertain outcome if their custody issues go before a judge.  There is a saying among mediators that “uncertainty is the friend of mediation.”  When the outcome in a court is not predictable, most people prefer to work out a settlement that they can live with rather than risk an unfavorable result.  This is never more true than in cutting edge issues involving civil unions, same sex marriages and parenting issues where only one or neither party is a biological parent.

All couples have similar concerns when their relationship breaks up.  Where will the children live?  Who will be the primary parent?  Who will support the children?  What sort of parenting time will the non-custodial parent have?  But these issues can take on more complexitiy when the law is less clear. 

Mediation allows parents to work out an individual plan that fits their needs and the needs of their children.  As in any “divorce”, the goal is to preserve a relationship with both parents and to avoid allowing the anger and hostility that may exist between the adults to infect the environment of the children.  Mediation allows the parties to work out a parenting plan in a safe and calm space, free from the pressures of courtroom deadlines.  Parenting alternatives can be “tried on for size” before any commitment is made.  Even the children’s voices can be heard if the children are of sufficient age.

There is no “one size fits all” in parenting arrangements.  The parents are in the best position to set the arrangement that will work for them and their children.  And the mediator — whether lawyer or mental health professional — can help the parties to craft the best plan for them and their family.  The plan can also be flexible, allowing for modifications as the children mature or as needs change.

For more information on mediating custody issues, contact Risa A. Kleiner, Esq. at 609.951.2222 or by email at risa@rkleinerlaw.com

Adults who divorce eventually move on.  But studies have shown that when parents fight, children may suffer long term effects.  The last thing you want for your children is to have them brought to court so a judge can interview them or have them sent to one or more specialists for an evaluation.  Parents can avoid putting their children in the middle.  They can make joint decisions about custody and parenting time with the help of a mediator or collaborative lawyer.

In New Jersey, most couples share joint legal custody of their children after a divorce. This means that they commit to making joint decisions about the health, education and welfare of their children.  This includes decisions about their healthcare, their schooling, religious upbringing and college. 

Similarly, in New Jersey most couples share physical custody of their children in a structured arrangement.  The parent who has the children more than 50% of the time is called the Parent of Primary Residence.  The other parent becomes the Parent of Alternate Residence.  Each parent makes day-to-day and minor decisions for the children when they have the children.

Parenting arrangements vary from  family to family.  Children often live with one parent during the week and are with the other parent on alternate week-ends and sometimes on one or two nights during the week as well.   Parents who reside near each other after the divorce may have a more flexible arrangement during the week.  Most parents alternate or share major holidays and set aside at least two weeks during the summer to spend with their children.  Some parents share equal parenting time on alternate weeks, but this is less common.

No one size fits all.  The key is for the parents to actively work with their mediator or collaborative attorneys to structure a parenting arrangment that is workable for them and appropriate for their children.  Cooperation is the key.  The children will mirror that cooperation, accepting a two-home arrangement as a part of their routine. The ultimate schedule will be incorporated into a Settlement Agreement and, if the parties divorce, will become part of their Judgment of Divorce. 

Parents are free to adjust the schedule as the children grow and mature.  This, too, can be accomplished at the mediation or collaborative table through cooperation, thereby saving financial and emotional resources and maintaining a peaceful life for their children.

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

The New Jersey Association of Professional Mediators (NJAPM) is offering divorce mediation at a reduced cost to couples who qualify.  The program pairs a qualified couple with an Accredited Professional Mediator and an apprentice.  For $150 per hour, about half the usual cost, couples can submit all of their divorce issues for mediation.

At the conclusion of the process the couple will have a written Memorandum of Understanding to take to their lawyers to finalize the divorce. 

Most mediations take between 2 and 5 sessions and cost far less than a litigated divorce.  Issues of custody, parenting time, division of property and support are addressed by the mediator.  Sessions are held in the mediator’s office and are completely confidential.

Couples must have a combined annual gross income of less than $120,000 and have no history of domestic violence to qualify for the program.  Income verification will be required at the first mediation session. 

Applications may be found at www.njapm.org.  Look for the box on the right side of the Home Page that says “Divorce Clinic.”  Or you may call NJAPM at (800) 981-4800 for further information.

I attended a fascinating seminar yesterday presented by NJAPM on Mediating Elder Law issues.  Much like a divorce where family relationships add a layer of complexity to the legal issues, elder law issues may involve multiple generations and many family members.  Usually, the last thing the “elder” wants is for his or her family to fight over how to provide care for them.  Yet, the decisionmaking may be complicated by geography, economics, family history and emotions.

As a family mediator, it was clear to me that using mediation techniques to resolve elder care issues is far more beneficial to the entire family then starting a court case.  The last thing a parent or grandparent wants is to have their family fight over their care.  Not to mention the fact that court proceedings are costly.

 I learned that a mediator can bring a Geriatric Care Manager to the table to provide options.  Geriatric care managers with a background in nursing or social work are trained to investigate all the options — from home care to nursing homes — interview the elder to determine his or her preferences and make recommendations to the entire family. 

The benefits of mediating elder issues include minimizing conflict among family members;  valuing the concerns of all family members while focusing on the elder’s needs; and preserving assets by lowering the costs of resolution.  In addition, mediation will yield benefits in the future by improving communication among family members.

For more information on mediation, contact Risa A. Kleiner, Esq. at 609.951.2222 or at risa@rkleinerlaw.com

1.  Mediation is private and confidential.  Litigation occurs in an open courtroom.  Not only is the courtroom open to the public, but NJ courtrooms are now wired for recording.  Mediation takes place in the mediator’s office with only the parties and the mediator present.  The mediator is not permitted to disclose the discssions or the outcome to any third party, including the court.

2. Mediation is less expensive.  Litigation requires formal discovery and numerous court appearances.  Mediation takes less time and the parties share the cost of the mediator.  They consult their attorneys, but the attorneys do not usually attend mediation sessions, so attorney time and costs are contained.

3.  Mediation is respectful.  Communication in litigation often becomes heated.  Parties have to listen to opposing attorneys make negative statements about them. Discussion in mediation is monitored by the mediator and the parties agree to respectful dialog.

4.  Mediation is creative.  Mediation allows the parties to design solutions that work for them and the mediator helps by providing viable alternatives and options.  Judges lack the time to create solutions that fit individual cases and tend to resort to traditional outcomes.

5.  Mediation is less stressful.   Talking privately in a mediator’s office with the goal of finding solutions is far less stressful than spending hours in court where the outcome is beyond each individual’s ability to control.

6.  Mediation results in agreements that last.  Court-dictated outcomes are imposed on the parties, whereas mediated settlements are created by the parties.  When one or more litigants is unhappy with the outcome, it is more likely that the parties will have to return to court to enforce the agreement or seek to change it.

7.  Mediation avoids the time pressure that court deadlines impose.  Faced with court deadlines, many litigants feel pressured to accept a settlement that may not work for them.  In mediation, each party has time to consider the outcome, consult with their attorney and come to a rational decision.

8.  Mediation is child-friendly.  Instead of ratcheting up the hostility that often accompanies divorce, mediation turns down the heat and diffuses the conflict.  Nothing (including divorce) is worse for children than ongoing hostility and conflict between their parents.

9.  Mediation allows each party to speak for themself.  No one knows your situation better than you.  Having the opportunity to express your concerns is priceless.

10.  Mediation is successful.  The American Arbitration Association reports that 85% of all mediations (civil cases as well as divorces) are successful.    Family mediators report that fewer than 1 of 10 mediations fail.  Since the mediation is confidential, there is no downside to giving it a try. 

For more information about Mediation or to set up an appointment, contact Risa A. Kleiner, Esq. at 609.951.2222 or via email at risa@rkleinerlaw.com

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.

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.

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

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

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. 

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

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

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.

On August 15, 2010, Governer Patterson signed into law a no-fault divorce law in New York State permitting couples to get divorced without alleging fault.  Instead, they can now divorce by simply alleging irreconcilable differences, incompatibility, lack of communication or mutual consent in their divorce complaint.  New York is nearly 40 years behind New Jersey in providing couples with a means of divorcing each other without allegations of cruelty, adultery, abandonment  or other fault grounds.  In its 1971 Divorce Reform Act, the NJ Legislature acknowledged the changing times by permitting the parties to divorce without alleging fault if they had been separated for at least 18 months.  And in January 2011, no-fault divorce in NJ was expanded even further by permitting parties to divorce based on irreconciable differences for a 6 months or more.

“No-Fault” divorce does not mean that the parties have no issues to resolve.  While it is true that more than 95% of cases ultimately settle without a full trial and are finalized with a written Agreement, thus making them “uncontested” at least by the time they reach the court, the meaning of “no-fault divorce” applies to the grounds for divorce, not to whether there are issues to be resolved.  In a “no-fault” divorce, couples need not cast stones at each other to convince the court that they do not have to remain married.  The Judge will not need or want to hear testimony on who did what to whom as behavior, unless it rises to the level of egregious and unconscionable acts, will not be an issue.

So, is a no-fault divorce faster?  Not necessarily.  If the parties cannot reach agreement on issues such as custody, child support, alimony and the division of assets, the divorce can be just as contentious and drawn out as a fault divorce.  The ”cause of action” will not be an issue if the case goes to trial, but the judge will have to decide the other issues if the parties are unable to settle them. 

Is a no-fault divorce cheaper?  Again, it depends on whether, through negotiation or mediation, the parties are able to resolve issues without going to court.  One general benefit of filing a no-fault complaint for Divorce is that it does not have to contain accusations against a spouse.  It merely states that the marriage has broken down, cannot be repaired and one party is seeking to end it.  By avoiding negative accusations, the parties are more likely to be a able to put emotion aside and focus on the issues.  While not always easy, this can save the parties thousands of dollars in counsel fees.

For many years, women’s groups actively contested the implementation of no-fault divorce.  They believed that women would be abandoned in droves and their financial status diminished as a reult of the divorce.  But, a 2000 study confirmed that women initiate the divorce in nearly 2/3 of all cases.   Few divorce complaints in New Jersey are now filed on fault grounds.

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

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

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

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.

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

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.

Did you know that you can negotiate the dependency exemption for a child as part of a divorce agreement?  While Head of Household filing status can only be claimed by the parent who has custody of the child more than 50% of the time, the dependency exemptions for children can be allocated or alternated in a divorce.  For example, a couple with two children can agree that each of them will claim the dependency exemption for one child.  Or a couple with one child can alternate claiming the exemption.  The dependency exemption is $3,650 and the actual tax savings is the % of that amount which reflects your actual tax rate.  So, if you are paying taxes of 25% to the IRS, your benefit from claiming each dependency exemption is 25% of $3,650 or $912.50.

Children under 19 can be claimed as dependents.  Children over 19 and under 24 can also be claimed if they are full-time students and their income is less than $3,650 for the year.  There is also a child tax credit up to $1,000 for each child under 17 that applies for some lower income parents who claim the child as a dependent.  You should consult your tax preparer for more information on this credit.

For 2010, there is also an expanded tax credit for parents who adopt a child.  The maximum credit is now $13,170.  The credit is related to the reasonable and necessary expenses related to a legal adoption, including fees, court costs, attorney fees and travel expenses.  

Parents with lower incomes may also be eligible to claim the Earned Income Tax Credit.  The maximum family income cannot exceed $48,362 to claim this credit.

The American Opoportunity Credit can provide some relief from the cost of higher educaton.  An expanded version of the Hope credit, this credit is now a maximum of $2,500 for the cost of tuition and other higher education expenses.  Students must be enrolled at least half-time.  The credit is available for each student in a family.  This credit, like others, phases out for higher income families.  If the family doesn’t qualify for the Opportunity Credit, they may qualify for a newly enacted deduction of p to $4,000 for tuition and fees for higher education.  Again, consulting with your tax preparer will provide the answer for your specific situation.  Because Congress just passed this deduction in December, the IRS needs time to update its systems to accommodate it.  As a result, tax returns claiming this credit cannot be filed before February 15, 2011.

The above is intended as general information only.  Contact your tax professional to confirm the credits that apply to your individual situation.  For more information on mediation and collaborative divorce, contact Risa A. Kleiner,Esq. at risa@rkleinerlaw.com or by calling 609.951.2222.