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February 2014 Archives

Grandparent Visitation Rights in New Jersey

The issue of grandparent visitation arises in many contexts; however, at its most basic level, the rights of grandparents to have visitation with their grandchildren becomes problematic when the custodial parent denies access to the child, for whatever reason. While, at times, the grandparent's role in the child's life, prior to the denial of visitation, is profound, due to any number of disagreements between the child's parents or the parent and the grandchild, the grandparent's involvement may cease. At that point, when the parents will not allow the grandparent access to the child, the grandparent's options are limited to seeking judicial intervention. Unfortunately, the road to gaining visitation rights for a grandparent is often quite arduous; however, no one can doubt that the benefits of a successful challenge, i.e. the ability to foster a relationship with one's grandchild, can make the difficult journey worthwhile in the end.

Cost Savings in Collaborative Divorce

After posting about the Collaborative Divorce process a few weeks ago, I have received numerous inquiries regarding the statements related to the potential cost savings that the Collaborative process offers, as many readers figured that with both parties still represented by their own attorney the savings would be minimal. Therefore, I figured I would take some time to more fully explore the cost savings that the Collaborative process can create. As an initial matter, it is true that in a Collaborative Divorce each party retains their own attorney at the same rate that they would likely pay a litigation attorney. It is also true that within the Collaborative Divorce process practitioners utilize third-party neutrals, typically between 1-3 per case, which charge additional fees to the parties. However, due to the difference in the process, and the sharing of many expenses, the combined total cost incurred by the parties will be significantly less than if the matter was litigated. One of the major cost savings results from the elimination of judicial requirements that are created in a divorce litigation, at least until a settlement is reached. In a typical litigation case, one party files a Complaint, which is served (at a cost) on the other party, who then files an Answer and Counterclaim. In a Collaborative case, once an agreement is reached, one party files a Complaint and the other party simply executes an Acknowledgement of Service and Consent to Enter Final Judgment of Divorce, eliminating the cost of serving the pleadings and the need to file a separate responsive pleading. In a litigation case, the Court schedules the matter for a Case Management Conference (which results in a scheduling order necessitating the service of costly Interrogatories and Notice to Produce), followed by an Early Settlement Panel, followed by Economic Mediation, with a paid mediator (albeit with the first 2 hours free, one of which is spent reviewing the file before the first mediation session). If the case is still not settled at that point, the Court will require additional mediation/settlement conferences, followed by a trial, which would exponentially increase the attorneys fees beyond anything that would be incurred in the Collaborative setting. In contrast, in a Collaborative Divorce, none of these required court processes are engaged in; instead, the parties meet in conferences aimed towards reaching a settlement from the outset. With each Court appearance requiring payment for travel time and waiting in the Courthouse for the Judge to get to your case, each party will easily spend around $1,000-$2,000 each day their attorney is required to go to Court. Further, because of the inflexibility of the Court schedule, they will be required to appear when the Court mandates, as opposed to when they are available. With the attorney fees being limited by eliminating many useless hours on procedural matters, the money spent on fees can be focused on productive tasks. Furthermore, in a litigation case, because the nature of the process is adversarial, the parties are at odds with each other each step of the way, always attempting to gain the upper hand and increasing the time spent negotiating even mundane matters, at the cost of higher legal fees, in addition to increased anxiety and frustration. For example, in litigation each party serves lengthy requests for discovery which often seek irrelevant information, whereas in a Collaborative Divorce the parties work together, along with the joint financial expert, to accumulate all necessary information. In the litigation context, full disclosure is not always achieved as parties try to limit the other parties' access to information to gain a competitive advantage which, again, results in higher legal fees. In addition, with a joint financial expert, the cost of one is shared by two, whereas in litigation, with each party retaining their own expert, the cost of two is born by both. Furthermore, in the litigation context each attorney is helping to prepare, compile and review all the financial information, again at the cost of two professionals plus the experts, whereas in the Collaborative context the attorneys allow the trusted, neutral financial expert, whose single rate is less than either of the attorney's hourly rates, to compile and prepare the necessary financial information. In essence, in its simplest explanation, the attempt to gain an advantage in litigation comes at the cost of incurring higher legal fees, whereas the attempt to jointly come to a fair resolution in a Collaborative Divorce results in more complete disclosure with less effort and at less cost, even with the use of multiple professional neutrals. The reality is that a full explanation and breakdown of the costs savings cannot be achieved in the limited space within a blog entry; however, as a seasoned litigator and Collaborative attorney, I can assure you that Collaborative clients, in the long run, spend significantly less on fees than litigation clients, due to the nature of the Collaborative practice vs. the adversarial practice, the elimination of the Court's involvement and required appearances, and the joint efforts of the parties, the attorneys and the professionals involved. 

Important Insurance Considerations for Separated or Divorcing Individuals

When couples separate and begin the process of going through a divorce, with one spouse deciding to leave the marital residence, there are often a myriad of considerations and chores that need to be taken care of, much like whenever anyone moves. The spouse who is moving out needs to concern himself or herself with furnishing the new residence, setting up utilities, and settling into the new life. However, one thing that couples often overlook is the need to potentially change their insurance policies to reflect the new living arrangements. As an initial consideration, it is important to remember that when an individual files for divorce in New Jersey they are required to certify as to the various insurance (health, auto, homeowners and life) that is in place and are not permitted to amend those policies to provide lesser coverage without consent of the other party or permission of the Court. However, if a spouse leaves the marital residence, the policies may need to be adjusted and/or new policies may need to be obtained. A typical auto policy contains language wherein in addition to the named insured the "spouse" is covered, but only if a resident of the same household. If the spouse ceases to be a resident of the same household, they will be covered, typically, only until the earlier of 90 days, the end of the policy, or the effective date of a new policy which specifically names the spouse as the named insured. Therefore, with regard to an auto policy, it is important to change the garaging information on the vehicle, the driver's residence information and/or, preferably, to obtain a new policy. If the couple has children who drive, they will want to be certain that the children are properly covered under both policies or, at the very least, on the policy of the parent with whom they are living. With regards to your homeowner's insurance, the spouse leaving the marital residence will want to get a new policy, even a renter's policy, to ensure proper liability and personal property coverage. The spouse who is leaving will also want to be named as an additional insured on the homeowners policy of the marital residence, as their coverage as "spouse" will have ceased. Finally, if you and your spouse have umbrella coverage and/or specific item coverage, you will need to ensure that the new reality of your living arrangements is specifically accounted for on the policy. Once the divorce is finalized, the divorced individuals will typically obtain their own, individual policies. However, it is clear that a lapse in coverage may occur if one waits until a divorce is final to review their various insurance policies. In addition, once a divorce is final, with regards to life insurance, it is critical that, if the ex-spouse is a named beneficiary on the policy, the policy is amended to reflect the change in the relationship from spouse to ex-spouse, as a life insurance company can deny coverage to the ex-spouse if they are still listed as the spouse on the policy. 

What to Look For in a Divorce Attorney

As an individual prepares for the realities of a pending divorce, regardless of which spouse has taken the first step to terminate the marriage, the first decision that must be made is hiring a lawyer to represent their legal and equitable interests. In choosing a lawyer, there are a number of considerations that dictate whether an individual lawyer is an appropriate fit for your case.

Tax Considerations During and After a Divorce

With tax season upon us, now is a good time to review the various tax implications of a divorce. For a divorcing couple, the tax issues are relevant both during the pendency of the divorce and upon the divorce being finalized. In both instances, an individual must understand their rights and obligations as it relates to filing federal and state tax returns.

Collaborative Divorce: A Cheaper, Healthier and More Satisfying End to Your Marriage

When an individual contemplates getting a divorce, they frequently reach out to their divorced friends. Unfortunately, for every positive experience in the litigation system that a divorced individual can share, the negative, demoralizing, exasperating experiences are ten-fold.

Attempts to Relocate by Custodial Parent

After parents are divorced, a custodial and parenting time agreement is reached. In some cases, the non-custodial, or parent of alternate residence, may have limited parenting time with his or her children, i.e. every other weekend with one midweek dinner visit, etc. In other instances, the non-custodial parent may actually have a true shared parenting arrangement, whereby they enjoy parenting time nearly 50% of the time. In either case, when the custodial parent proposes to relocate a significant distance away from the non-custodial parent, the impact on the custodial and parenting time arrangement can be stark.