New Jersey Family Law Blog

Don't let your children be casualties of divorce

I read with interest the recent post by Paula Lawhon on her San Francisco mediation blog on how custody litigation damages children. I agree with her comments that:

"Regardless of the status of the intimate relationship between the parents, they will always be parents. While the relationship between the parents changes, it does not change the fact that the children still need both of their parents in their lives. It can be hard to put aside anger and other strong emotions following a difficult separation, but is a task made easier when both parents are committed to putting the best interests of their children first."

Separating child custody and parenting time from resolution of financial issues is something everyone going through a divorce should strive for.  Mediation of child custody and parenting time issues whether done privately with an attorney or through one of the free services provided by the New Jersey Judiciary at each county court house is something that should be considered.  

While it is impossible for children not to be effected by a divorce, they should not become casualties of divorce, as the slideshow below poignantly reminds us:

Casualties Of Divorce

View more presentations from Sam Shamir.

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• Children harmed by sole custody, report says (thestar.com)

If you think your attorney has overcharged you for a family law matter, try fee arbitration

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Many States provide an easy way for the public to dispute the cost of legal services they have been charged.  In New Jersey, the Supreme Court had created seventeen district fee arbitration committees who hear cases where the amount of fees charged is less than $100,000.  As described in New Jersey Court Rule 1:20A in cases involving less than $3000 in fees, one arbitrator will make a decision and over this amount three people will be involved of which two or three will be lawyers.  Further information can be found on the New Jersey Judiciary web-site or by calling the Ethics/Fee Arbitration hotline at 1-800-406-8594.

At the arbitration hearing, documents can be presented, sworn testimony taken and you can even ask them to subpoena witnesses to attend, if appropriate.  The decision of the arbitrators is binding on both parties, but this doesn’t prevent a legal claim for malpractice or the filing of an ethics complaint.   So what are the advantages of fee arbitration:

1. Low cost to the claimant - $50 filing fee
2. If the lawyer does not respond or appear at the hearing, the case will be considered as uncontested
3. Burden of proof is on the attorney to show that the amount they charged for legal services is “reasonable”

In all family law matters, an attorney is required by New Jersey Court Rule 5:3-5 to have a written retainer agreement with the client.  However, even though you have agreed to pay a certain hourly rate or fee for a matter, the amount the attorney charges you for his/her services must be “reasonable” under the New Jersey Rules of Professional Conduct (R.P.C.) that all attorneys are obligated to follow.  

The factors that make a fee “reasonable” are set forth in R.P.C. 1.5 and include:

1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
2. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing the services;
8. whether the fee is fixed or contingent.

One of the classic cases, not from New Jersey, that law school ethics classes use to discuss this area is the case of the DUI where an experienced attorney who did not normally do DUI work took on a case and charged several times the going rate to represent a client, and through a novel legal idea managed to get them acquitted.  Even though the results obtained were spectacular, the attorney was found to have committed an ethical violation in not charging a reasonable fee.

So, if the Fee Arbitration Committee finds in your favor, it is possible that the attorney in question may have violated the Rules of Professional Conduct.  As set forth in New Jersey Court Rule 1:20A-4: “[I]n all cases it shall be the duty of each Fee Committee, after hearing and determination of the fee, to refer any matter that it concludes may involve ethical misconduct that raises a substantial question as to the attorney's honesty, trustworthiness or fitness as a lawyer in other respects (including overreaching) to the Director [of the Office of Attorney Ethics] for investigation.”

Fee Arbitration hearings and the decisions of the committee are confidential, so it is hard to know what type of cases or fact patterns are successful.  This is something that is being challenged by organizations such as HALT, who believe that this enforced confidentiality is a violation of freedom of speech. 

If you have a reasonable belief that your attorney has been unreasonable in the fees charged, then fee arbitration is an alternative dispute resolution mechanism that is worth considering as it allows the dispute with your attorney to be resolved in a timely manner and at low cost to both parties.

When thinking about a divorce consider Alternative Dispute Resolution options

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Not every divorce is a scorched earth, bitter, contested fight. There are people who recognize that they have just reached the end of a road in a relationship and it is time to move on. We all change as we grow older and life circumstances may result in people growing apart.

For those who are able to divorce in a friendly way, and there are people out there who do, then alternative dispute resolution such as mediation may be a dignified way to reach a settlement agreement that is fair and reasonable to both parties.

The parties can work with a professional mediator to work out the details of any settlement, with a signed memorandum of understanding (MOU) reflecting any agreement they reach. They can then take this to their own attorneys to prepare a settlement agreement, and then file an uncontested divorce.

To stimulate thinking about alternative dispute resolution (ADR) as an alternative to conventional litigation, New Jersey Court Rule 5:4-2(h) requires every person filing a divorce complaint to certify under penalties of perjury that they are aware of alternative dispute resolution methods such as mediation and that they have received descriptive information about them. Copies of the forms and background information on this requirement can be found in the New Jersey Judiciary Notice to Bar dated 12/4/2006, and certification forms are available on the New Jersey Judiciary web-site.

If you are seeking a divorce, be sure to think about whether your case would be amenable to mediation or alternative dispute resolution.

How to obtain more parenting time ?

So you want more parenting time with your children, how do you go about this in New Jersey ?

1. Follow any agreed dispute resolution process
Frequently, at the time of divorce the parties will write into their settlement or custody agreement how they will resolve parenting time issues in the futures. If there’s an agreement to go to mediation, (it may even specify an agreed mediator if you worked with one at the time of divorce) then that’s the mechanism you should follow. Parties have to follow their own agreement, so first read your custody and settlement agreement carefully to see if any dispute resolution mechanism was agreed.

2. Try and obtain a voluntary agreement
If there is no agreed dispute resolution process, then see if you can reach agreement with your ex-spouse on additional parenting time. If you both can agree, then have a lawyer write up your new agreement as a Consent Order. In this document, both parties sign their consent to the parenting time changes. The Consent Order is then sent to a Judge for his/her signature and filing by the Court. Once the Judge has signed it, then it is legally binding and can be enforced by the Courts. It is a relatively inexpensive way to obtain a legal order without the need to file a motion or make a court appearance.

With any parenting time change, there may also be the need to recalculate child support as the New Jersey child support guidelines take into account the number of overnights with each parent. Some parents are reluctant to consent to additional parenting time because they don’t want to give up child support $. However, seeking additional parenting time just to reduce your child support is the wrong reason for doing it. Your ex-spouse will probably know if it is really about money or because you genuinely want more time with your children, and they want to spend more time with you.

3. File a motion with the Court
Assuming your ex-spouse does not agree to additional parenting time, then you will need to file a motion with the Court. Parenting time is always subject to modification based upon a showing of a substantial change in circumstances, with the burden of proof resting on the party making the motion. The primary consideration of the Court is the best interests of the child. Mastropole v Mastropole, 181 N.J. Super. 130, 137 (App. Div. 1981).

Before the Judge will decide the motion, if the parenting time issues are substantial and genuine, then both parties will be referred to mediation as required by New Jersey court rule 1:40-5. There are free programs run by the New Jersey Courts with experienced mediators.

If mediation fails, then the Judge will decide the motion. In awarding additional parenting time to one parent, the standard a New Jersey court will apply is the best interests of the child. See Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971); Comas v. Comas, 257 N.J. Super. 585, 590 (Ch. Div. 1992). Judge's have a lot of discretion when it comes to deciding parenting time issues, so what is in the "best interests of the child" will depend on the unique facts of your case and situation.

If you agree to mediate a dispute before going to court, then that’s what should take place

It sounds simple and it is – if you bargain for and agree in your divorce agreement for a specific way of resolving a dispute before going to court, then that’s what should take place. An example of this is described in the July 23 unpublished appellate opinion in Cohen v. Cohen.

The parties agreed at the time of their divorce in 2005 that they would attempt to negotiate any child support disputes with the help of a mediator before making a motion to the court. Instead of following this, the ex-husband stopped paying child support in May 2006 and the ex-wife in August 2006 brought a motion for enforcement with the ex-husband making a cross motion to terminate his child support.

The motion judge told the parties that they should follow their own agreed mechanism for resolving disputes i.e. attempt mediation first, and denied the ex-husband any lowering of his child support. To his credit the judge also informed the parties how he would decide the motion if it was properly before him, which would be to deny the ex-husband any reduction in child support due to the fact that his changed circumstances were not permanent.

On appeal, the appellate decision affirmed the motion judge’s decision finding that agreements for alternative dispute resolution are binding and enforceable. So if you agree to mediate a dispute before going to court, then that’s what should take place.

Mediation of Prenuptial Agreements

Thanks to Vickie Pynchon of the "Settle it Now bl ar g” for introducing me to Paula Lawhon’s “San Francisco Mediation” blog. Paula describes some really great examples on her blog of recent family law mediations she has done.

One idea I particularly liked was her post on mediating prenuptial agreements. As Diana Skaggs notes on her Divorce Law Journal blog, the use of pre-nups is increasing particularly amongst baby boomers. So, rather than one party have their attorney draft the pre-nup, which comes across as adversarial, you could as Paula does have both parties reach an agreement through a mediator. This is a far more collaborative approach and afterwards the parties then take the agreement back to their own individual attorneys for review to ensure it will be enforceable.

Many attorneys use the same mediation approach towards reaching divorce agreements and working out the details of the property settlement agreement, parenting time and custody of children. My friend, August Landi uses this approach to good effect.

If you are not in a high conflict divorce then don’t create unnecessary conflict by being adversarial. If you have children, you will still have to interact with your soon to be ex-partner for many years to come. As Paula states in another of her excellent blog posts, you can choose a “Good Divorce” over a “Bad Divorce”.

Launch of Mediation Video Blog

Thanks to Diana Skaggs for the post on her excellent “Divorce Law Journal” about the mediation vBlog project recently launched by New Zealander Geoff Sharp. Having just started some audio casts, I am in awe at the ability to have a blog that will be done solely with video clips.

Diana’s post links to many other dispute resolution blogs that are well worth reading such as the Online Guide to Mediation, Settle it Now Mediation Bl ar g and Settle it now Negotiation Blog.

The use of alternative dispute resolution techniques is rising not only for divorce but also in post-judgment disputes. Sadly, too many attorneys lack training in mediation and just adopt a confrontational approach.