Common Divorce Questions (1/2)

Common Divorce Questions

Answers to some of the more frequently asked questions about the divorce process in New York and New Jersey

LEGAL ISSUES

“I’m thinking of filing for divorce. Do you have any initial advice?”

The ten things you should know before filing for divorce:

1. During a divorce, a couple must resolve their economic relationship, including the distribution of property they acquired during the marriage, and setting appropriate alimony and child-support obligations. They must also agree on a parenting plan concerning access to their children and custodial rights, or the court will decide these issues for them.

2. Strong emotions such as anger, grief, sadness, hostility, and even denial are regular ingredients in every divorce. These many emotions are the key reasons the divorce process can be so unpredictable, lengthy, and costly. Professional counseling–even a small amount of it, before, during, or even after the divorce process can help the participants of divorce get through it.

3. To the extent that spouses allow their emotions to affect their decision-making in divorce, they will enrich their lawyers–and impoverish themselves. Litigants must approach the end of their marriage as a business proposition that requires an equitable sharing of assets, appropriate assessment of support rights and obligations, and implementation of a parenting plan that recognizes each parent is entitled to continue a relationship with the children and, most importantly, that their children need both of them.

4. New Jersey has no-fault and fault grounds for divorce. The reasons that you state for filing for divorce in your divorce papers (for example extreme cruelty or no-fault separation) are usually accepted at face value by the court. The court normally does not care who or what was responsible for breaking up the marriage. (That was not the case 30 years ago, before the passage of no-fault divorce laws, back then, some judges used to lecture spouses about the need to keep a marriage together, and occasionally, judges would deny a divorce request.) Marital misconduct may become relevant with respect primarily to parenting issues.

5. While it may be tempting to try to avoid the expense of representation, virtually no one (not counselors or even judges) recommends that you enter into the divorce process without the advice or representation of a reputable divorce attorney. A good attorney will recognize the important issues of your divorce quickly and intelligently. He or she will also help you focus on and achieve the results you’ll both want and need, consistent with the parameters within the system or the judge assigned to your case. Having no representation or advisor, especially when substantial assets are involved, is widely regarded as just plain foolish.

6.“Digging in your heels” always costs more. It may sometimes be worth it, but a large amount of time and expense goes into the divorce process when two sides refuse to communicate on basic issues.

7. Bergen County will expect you to attend a two-hour presentation on the effects of divorce on children. You will sit with a small number of the other 12,000 people (6,000 couples) who file for divorce in Berger

County every year, and you will receive a lecture ad watch a video on the importance of communication and commitment to proper child rearing during and after a divorce.

8. During the divorce process, the Berger County Court system will expect you and your lawyer to show up for Case Management Conferences to report on the progress of your case to the court. After a few months, if no progress is made in settling, the court will assign you a trial date. Most divorce cases (about 95 out of 100) settle before going to trial.

9. You will be expected to fill out a Case Information Statement, which is a court-approved form that contains significant information about your economic life, including lifestyle expenses, assets, liabilities, income, health insurance, and other insurance benefits and the like. Both sides must complete these forms. They are a critical part of the case, because the courts rely upon them, in part, in the event the litigants cannot come to a consensual resolution. You may need to retain experts to value assets, and you have an absolute right under court rules to do so.

10.No one can make up her mind about whether to initiate a divorce. Many professionals familiar with the divorce process every day see individuals who are considering divorce, but who have great difficulty making up their minds about doing so. Second thoughts are normal. Consider consulting a professional therapist or psychologist to sort out the many complex emotions of divorce before you even begin the process.

“How can I prepare myself for a day in court?”

The most important thing to know about preparing for a day in court is what to expect when you get there. It is your attorney’s job to guide you through the legal process before, during, and after a court appearance, and to make it as easy to understand as possible. However, it is important to remember that your relationship with your attorney is like a partnership and the two of you should work together to reach a common goal and obtain a favorable outcome.

Your preparedness and expectations for your day in court are directly related to your interactions with your attorney and the questions you ask. You should ask as many questions as you need to get a clear understanding of what your court day is for, and how things will proceed when you get there. You should also ask your attorney whether you will be expected to speak to the judge, and if so, prepare your statement or testimony in advance. It is equally important to discuss how your day in court will affect your overall case.

Preparation for your day in court includes helping your attorney represent you to the best of their ability. It is critical that you provide all the pertinent information about your case well in advance of your court date, and that you keep your attorney up to date with ongoing changes to that information.

If your court date is scheduled for a settlement conference, work with your attorney to formulate a strategy for settlement, including your best and worst-case scenarios, and outline a final settlement position that you will be satisfied with.

“What can I do to save time and money during my divorce?”

Divorces tend to be extremely costly and consume an exorbitant amount of time for the parties and legal professionals involved. Time equates to money when matters are litigated. To save time and money during the divorce process, a litigant can utilize various alternate dispute resolution methods. These include, but are not limited to mediation, arbitration, and collaborative law. It is common for the parties to attempt one of the above alternative dispute resolution methods before filing a Complaint for Divorce, although they have the right to engage in mediation and arbitration after a complaint for Divorce is filed. In doing so, the parties do not have to incur the fee for filing the Complaint for Divorce, nor are they required to comply with court deadlines regarding filing CaseInformation Statements or serving and/or answering discovery, all of which is costly and time-consuming.

Mediation is a way divorcing parties can resolve their differences utilizing a trained, impartial third party–who is most often a lawyer. Mediators do not make binding determinations, but rather assist the parties in coming to a resolution without court intervention if they so choose. The litigants can attend mediation before or after a Complaint for Divorce is filed, with or without lawyers. Ultimately, if mediation is successful, the mediator drafts a Memorandum of Understanding, which the lawyer can transcribe into a Property Settlement Agreement. Thereafter, the parties can file a complaint for Divorce, if it has not been filed already, and obtain a Judgment of Divorce shortly thereafter.

Arbitration, on the other hand, is a proceeding whereby an impartial third party or parties, are presented with evidence and decide the case. The parties agree, before the arbitration, whether the arbitrator(s) decision will be binding or if they have the right to appeal the final determination. Arbitrators make decisions, not recommendations.

Collaborative law is fairly new in New Jersey. It is an alternate dispute resolution method that allows the parties to retain their attorneys, who work together with joint experts, to resolve their matter without court intervention. It is a “team approach” whereby the parties jointly retain a team of experts to help resolve their matter with a commitment not to litigate. If it is not successful, and a complaint for Divorce is filed, the parties are required to retain new attorneys and experts.

Alternate dispute resolution methods are a less costly, alternative approach to litigating your matter in the court system. Each approach gives the litigants more control over the outcome. Often a court case can take over two years before a trial date is set. During that long period, the parties are paying their attorneys, experts, etc. tens of thousands of dollars to fund the litigation. If the parties decide not to go to court and attempt to resolve their matter amicably, then a significant amount of time and money can be saved.

“My spouse has a health plan through his work, will I still be covered by the plan after we divorce?”

Pending the divorce litigation, neither party is supposed to change any insurance coverage. A spouse can continue to be covered on the other’s employer-provided health insurance coverage until

the entry of the Judgment of Divorce. Thereafter, they are no longer considered a spouse and not eligible to be covered by the insured spouse on the family plan.

The non-insured spouse may then elect to be covered under COBRA coverage (Consolidated Omnibus Budget Reconciliation Act) based upon the rules and regulations of their employer, insurance company, and statutes. There is usually a substantial cost for COBRA coverage and it is only available for a limited period. The non-insured spouse should contact the participant’s employer to determine the extent and availability of coverage before the Judgment of Divorce is granted to ensure the continuation of coverage. Keep in mind there are specific time limits for electing to obtain COBRA coverage, so the non-participant must act diligently to insure they do not miss the opportunity to elect coverage.

“I am currently in a domestic partnership. Should I enter into a civil union?”

If you are in a same-sex relationship and are currently in a domestic partnership, you absolutely must enter into a civil union. The New Jersey Legislature has made a distinction between the rights of a domestic partner and the rights of a partner in a civil union. For example, real estate laws are different, inheritance laws are different, and even your right to adopt is different. Children born during a civil union are presumed to be a child of both parents. There are significant differences, which is why the New Jersey Legislature has attempted to convey to partners in civil unions the rights of marriage. I highly suggest that you enter and convert your domestic partnership into a civil union. It does not automatically convert, and you must take affirmative steps to change this.

FINANCIAL ISSUES

“I’m transferring some of my interest in an IRA to my spouse in our divorce agreement. How should Igo about doing this?”

Compared to transferring part (or all) of a qualified plan–such as a 401(k) or pension plan, transferring interest in an Individual Retirement Account (IRA) is extremely easy. From a tax point of view, all that needs to be done is to direct whoever is holding the IRA (for instance: a mutual fund, brokerage account, or bank) to transfer that IRA, or part of it, to your ex-spouse. It is that simple. As a practical matter, the mutual fund/brokerage house/bank will require a letter or some form of writing, and may also require a copy of the relevant part of your divorce agreement.

Note that from your perspective (the one transferring the interest in the IRA) the transferring of part or all of an IRA as the result of a divorce action does not trigger a taxable distribution from that IRA. The consequences on the receiving end (which for this exercise is not your concern) are similarly anon-taxable events if handled correctly. It will be taxable to the one receiving the funds if the funds do not go to an IRA within 60 days of being transferred. As with so many other financial aspects of a divorce, you must employ a CPA tax expert to assist in the process.

“What is a Financial Affidavit and why is it important?”

The Financial Affidavit is a comprehensive list of assets, liabilities, income, and expenses for both parties. It contains all relevant case information including the date of the marriage, children’s names, issues in dispute, and the date of separation.

Each spouse typically completes his or her Financial Affidavit certifying to the best of their knowledge that all financial information is complete and accurate. The income and expense sections are often analyzed to assess the marital lifestyle to determine child support and alimony or spousal support.

The information contained in the Financial Affidavit is the basis for financial negotiations and often represents the first time the spouses have compiled a household budget and balance sheet. The financial Affidavit should also be used as the basis for important determinations such as whether either party can afford to maintain the marital home, how the retirement plan may change due to the divorce, and whether the lower-income spouse must look for additional employment opportunities.