Oct
31
Choosing a Divorce Attorney - Flexibility is Key
Filed Under Alternative Roads in Family Law, Attorney-Client Relationship, Family Law Basics | 3 Comments
I recently fielded a phone call from a business colleague who told me that she had referred me to a friend for matrimonial work. She mentioned that when she was getting a divorce she found that her attorney became too adversarial and impeded the progress of the divorce. She told me that, from her perspective, the divorce attorneys were making it about themselves and not about the clients.
I cringe when I hear that kind of story. One of the hallmarks of our practice is that the client and his/her needs are at the forefront of our minds when dealing with the case. I’ve often told many clients in an initial interview that I have no ego in the case. I can’t tell you how many times I’ve swallowed insult after insinuation about me and my firm because retaliation would have been counterproductive. This type of pliability in a negotiation is necessary because the goal is more important than maintaining ground in the ego game.
I also often have clients come in asking “Are you a fighter? I need a bulldog on this…” or “I really need someone who is collaborative…can you work with my ex’s attorney?” - I usually respond, kindly, that (1) yes, our firm can be all those things and (2) at this point, I’m not sure anyone knows what they’ll need in a divorce. A general way to state it is that they’ll need an attorney who can respond to the situation and can be what the circumstances warrant. I think there are a select few attorneys who can do that - at least in what I’ve encountered on the other side of the table. Most attorneys have one mode and have a reputation for being one thing. Those are the easiest attorneys to deal with (even the screamers) because you know what you’re getting from then and they’re rarely creative in their approach. That is, I almost never have to worry about not seeing the next move coming because it’s all so predictable. On the other hand, the crafty attorney is the one that never approaches the situation from the same angle. I’m on my toes with those attorneys because, having practiced that way myself, I know how crafty they can be.
The short of it is this - when you look for a divorce attorney or someone to handle your post-divorce family law matters, such as custody or support enforcement, seek out those attorneys for whom flexibility is a hallmark. In any divorce “battle”, you may need air strikes, sea power, diplomacy or a combination of four other things. If you restrict yourself to an attorney or law firm that specializes in air power with all the latest bombers, you’ll be vulnerable to the ground attack and may not avoid war altogether.
Was the war analogy too much? Just trying to get the point across.
Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC
Oct
18
NEW SERIES: Alternative Dispute Resolution Options for Divorce in New Jersey
Filed Under Alternative Roads in Family Law, Family Law Basics, Mediation & Collaboration in Family Law | Leave a Comment
If you ask most people what they think about divorce, it’s a safe bet the responses you get will not be positive. And if you ask most people to describe the typical divorce process, you will most likely get descriptions involving warring spouses, costly legal fees and overzealous attorneys battling it out before a judge in a court of law. The reality is that most divorce cases, especially in New Jersey are settled at some point and rarely end up going to trial.
Though divorce litigation can be expensive, there are cost-effective alternatives available to parties that often result in settlement as opposed to trial. The most common alternatives to trial involve Early Settlement Panels (ESP), mediation or arbitration.
In New Jersey, the courts mandate the use of ESPs to assist in the early settlement of disputed financial issues, which often results in a fair, equitable and expeditious resolution of divorce cases without the need for trial. ESPs are a form of settlement conference comprised of two attorneys (one male and one female) appointed by the court to arbitrate divorce cases on a volunteer basis. The parties and their attorneys present their respective cases to the Panel, who take notes and direct questions to the parties. The Panel then makes a recommendation of what they believe to be a fair divorce settlement. The parties can either accept or decline the Panel’s recommendation. If the recommendation is accepted, the parties can settle their divorce at that time. However, if the recommendation is declined, the case will be set for trial. It is important to note that ESPs do not hear matters or make recommendations involving custody or visitation.
There has been a growing trend favoring the use of divorce mediation as an alternative to costly litigation and courts of law. In mediation, parties voluntarily agree to resolve their differences before a mediator, who assists in facilitating a dialogue between the parties aimed at helping the parties reach a resolution they find acceptable. However, mediation is non-binding, so if the parties cannot agree on a resolution they can walk away from the table. A mediator has no authority to impose a decision on the parties.
Often times, mediation and arbitration are understandably mistaken as the same. Each, however, are entirely different ways of resolving issues. Like mediation, arbitration involves parties voluntarily presenting their cases before a neutral third party, who then renders a ruling on settlement. However, unlike mediation, an arbitrator has power to impose a settlement. Generally, both parties agree to be bound by an arbitrator’s ruling prior to arbitration. Once an arbitrator renders a ruling, it is submitted to the court for filing by way of court order. An arbitrator’s ruling is binding on both parties and virtually non-appealable
Each of these alternatives has its merits for resolving divorces without the need for trial. Your attorney should discuss these alternative dispute resolution options as you proceed along your divorce.
NEXT UP: More on Early Settlement Panels
Posted by Jason Medina -
Medina, Martinez & Castroll, LLC
Oct
17
Passport Denial Program & Back Child Support
Filed Under Child Custody & Visitation, Child Support, Father's Rights in Family Law | 1 Comment
A few reputable blogs (here and here) have recently posted on the State Department’s Passport Denial Program.
In short, the State Department denies passports to non-custodial parents who owe more than $2,500 in back child support. Once the non-custodial parent is no longer in arrears, he or she may reapply for a passport.
With the new western hemisphere initiative, requiring a passport for travel to Canada, Mexico and the Caribbean (not Puerto Rico, though), money obtained through the Passport Denial Program is set to double versus last year.
Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC
Oct
17
Are you the perfect client for a divorce lawyer?
Filed Under Attorney-Client Relationship, Blogroll, Family Law Basics | 1 Comment
The Oregon Divorce Blog has an excellent post on what makes a perfect client for a divorce case. I’ve reprinted here in its entirety and it’s an excellent read.
What a lawyer thinks of as a “perfect client” in the domestic relations sense is a client who helps the process of the dissolution, custody, or support matter along. We know how hard this process is to be going through, but it can be a much more difficult process the longer it drags on — and a much more expensive one for you. (Although we like getting paid as much as anyone else, we believe we should be problem-solvers, not problem-creators.)
Good attorneys will always treat their clients — all of their clients — with the same professionalism and respect they treat any other client. However, by helping us help you, you can make the process smoother, lower your costs, and get a better result! Here are some things you can do to help your attorney in your domestic relations case, to make things run more smoothly.
Tell us everything — the good, the bad, the ugly. We want to know the nastiest things the other side might throw at us, true or not. If you have hidden sources of income, a stake in Anna Nicole Smith’s love nest in the Bahamas, or a rare coin collection, we need to know and plan accordingly. Provide us with your tax, banking, investment, insurance, titles to cars and whatnot, and any other requested information quickly in the process (if you can bring this stuff to your first meeting, we might very well cry with joy). If you’re not in a place where you can get the information, sign a release that allows the attorney to request the information on your behalf. Keep in contact with us. We’ll provide you with frequent updates, but there are times when we need to get in contact with you quickly, too. Similarly, let us know the best way to contact you. If you’re one of those people who hates checking her voicemail but lives on her computer (wait, that would be me when I’m at home), let us know your email address and if that’s a better way to stay in touch. Understand that a contested divorce may take a while, even if it ultimately settles. We want closure for you as soon as we can get it, too, but not at the expense of a good settlement for you. If your case involves child custody, parenting time, or support, sign up and follow through with the mandatory education classes as soon as you can. Remember that your attorney is there to give you expert advice and recommendations, but isn’t going to be able to make the final decision about whether or not you should take a settlement. He can and will tell you if it’s a good idea or a bad idea, and what the benefits and pitfalls of an offer might entail, but the ultimate decision is going to be yours. Also, if you don’t like the way negotiations may be headed, if you change your mind about the way the case is going, or if you’re just generally unhappy about something, please say so. We’d much rather know about it (and fix it) than to find out much, much later that you’d been unhappy for a very long time. Advice aside, we know that this may be the, or one of the most difficult times of your life. We treat all of our clients as we would hope to be treated under the same circumstances: with diligence to their case, courtesy, the utmost respect, and the highest level of customer service possible.
Good divorce lawyers will work as hard to manage the relationship with their clients as they work on the case itself. One of the areas where our law firm excels is in client communication. We’re typically able to return phone calls within 4 hours (and usually much quicker than that), we use email extensively, and, if clients agree, we use web 2.0 technology to communicate with clients regarding documents and filings. When you call the office, if we’re not with a client or on the phone, you speak with the attorney on your case directly - not an assistant. If you call for me and I’m available, you’ll talk with me.
We’re also real people with families and lives outside of the law. So, while we may read and respond to your email in the evening, we don’t guarantee it. We need breaks to be fresh to work on your case. However, even with our need to step away from time to time, you can still be assured of quick access to us.
Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC
Oct
14
Comments on Dating after Divorce
Filed Under Alternative Roads in Family Law, Father's Rights in Family Law, Impact on Children | 2 Comments
I was reading one of my favorite blogs, California Divorce & Family Law, and came across this post regarding Dating After Divorce.
I’ll leave it to you to read the post because it’s interesting, but briefly, it tells a story of divorced parents getting back into the dating scene. Coincidentally, the post quotes a story from the Hartford Courant in Connecticut, where I grew up.
It makes me think about my own experience as the child of divorced parents. My parents divorced when I was 2 and both remarried when I was about 5. I can honestly say that I never remember seeing either one of them date until I met the people they eventually married. I’m no psychologist, though I married one, but I have to figure that part of the reason my parent’s divorce was so smooth was because my parent’s kept their divorce, including their dating, to themselves and kept me entirely out of it. Well, as out of it as can be expected given that mom and dad lived in different houses and I saw dad on the weekends, etc.
For what it’s worth, nothing about my parents’ divorce and my experience with it got me interested in family law, except to the extent that I get clients who are serious about collaborative divorce and I hope that their divorce has as little impact on their children as my parents’ did on me.
Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC
Oct
12
Self-Help Forms for Divorces in New Jersey
Filed Under Alternative Roads in Family Law, Attorney-Client Relationship, Divorce & Separation | Leave a Comment
Here’s a recent post on government-sponsored legal advice. As you’ll read, Florida is providing both form-filling advice, as well as some simple legal advice on divorces.
New Jersey has its own self-help forms for simple divorces. The can be found by following this link. I’m not sure they’ll actually give you advice (though, I will tell you that the clerks often know more law that some lawyers), but it’s a great resource. Especially the kit they provide, which is much more than some forms.
Like Christine Bauer of Florida Divorce & Family Law Blog, I think this is a great idea. I don’t believe that lawyers are needed in every circumstance. In fact, most simple divorces or custody adjustments are often worse off with lawyers involved.
Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC
Oct
12
Parenting Coordinators as Referees for Divorcing Mom & Dad
Filed Under Child Custody & Visitation, Child Support, Father's Rights in Family Law | Leave a Comment
The Wall Street Journal recently ran a piece about using Parenting Coordinators to establish communication procedures to help divorced or divorcing parents work together more effectively in the best interests of their children. This piece was quoted by a few notable weblogs, such as here and here, Below is a short excerpt:
In the past decade, more states and counties have put in place statutes or programs spelling out rules and qualifications for parenting coordinators, though practices still vary widely across the country. About a dozen states, including Colorado, North Carolina and Oklahoma, now have statutes giving authority to parenting coordinators, most of them also setting rules for how they should practice, says Barbara Bartlett, a Tulsa, Okla., attorney who has tracked the laws. A growing number of jurisdictions, such as some counties in New York and New Jersey, use coordinators regularly even without state statutes.
The Association of Family and Conciliation Courts, a group of family-law and mental-health professionals, issued guidelines in 2005 outlining appropriate practices and training. The group, based in Madison, Wis., also holds parenting-coordinator training sessions around the country. Still, states have yet to adopt formal licensing or accreditation for parenting coordinators.
As the field grows, with wide variation among states and counties in how the coordinators are used, some parents and legal professionals are becoming concerned. Some coordinators may not be well-equipped to handle extremely high-conflict parents or really tough situations involving domestic violence, substance abuse or severe mental illness.
Brian Schwartz, a Summit, N.J., family-law attorney, says that although parenting coordinators can be very valuable, they may have too much authority in some cases and may limit parties from going to court when it may be in their best interest. He’s also concerned about the cost of the service, especially if the two parents have very different financial circumstances. “Unfortunately, parenting coordinators are used too often as a crutch,” he says. “Judges believe if two people can’t get along, a parenting coordinator will solve everything.”
I would add that my experience has been that parenting coordinators work well regarding communication between parents, but aren’t always well-equiped to deal with the needs of special education children.
In addition to our family law practice, our firm has many school districts as clients and we’re often asked to assist school districts with residency issues or special education matters. Invariably, the agreements that parenting coordinators draft demonstrate little understanding of the New Jersey school law statutes or Federal laws on special education (IDEA). It doesn’t have to be us, but I would recommend that if you have a child or children with special needs you make sure that your lawyer is equipped to deal with those issues, even if the parenting coordinator is not.
Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC
Oct
7
Prenuptial Agreements - revisited
Filed Under Attorney-Client Relationship, Family Law Basics, Marriage & Family | Leave a Comment
I recently posted on prenuptial agreement. I then came across a great summary of the case that illustrates the need to have competent legal counsel representing you before signing a pre-nup.
The women in the case ended up on the losing end of a challenge to the prenup. The court took into account a number of factors that weren’t relevant to her ability to adequately assess the situation. It shouldn’t have mattered whether she was a real estate agent or a securities lawyer - and it certainly wasn’t relevant that her husband was a millionaire. Either way, by signing a pre-nup the day before the wedding, without a lawyer, she ended in the worst position of all.
Posted by Victor J. Medina,
Medina, Martinez & Castroll, LLC
Oct
4
Suze Orman on Prenuptial Agreements
Filed Under Attorney-Client Relationship, Family Law Basics, Marriage & Family | 2 Comments
A local New Jersey newspaper recently published a great article from Suze Orman on the advisability of pre-nuptial agreement.
Here’s the article:
Should marrying types have prenup? Yup
I know what you’re thinking: Prenups are so unromantic — a sign of distrust, not love. Time for a reality check, my friends. First, drawing up a prenuptial agreement together is a sign of incredible trust and financial openness — you’re fooling yourself if you think you can achieve complete in timacy without it. And at the risk of being a complete wet blanket, I just want to mention that north of 40 percent of marriages end up in divorce.
A prenup is doubly important for anyone entering a second marriage, as there may be sizable as sets from the previous marriage that you want to retain sole owner ship of (you can pass them along to any children from that first marriage). And those of you who are living with a partner should get a cohabitation agreement; it’s the prenup for couples who aren’t officially married.
Some prenup basics:
Before you sit down with lawyers, talk to your spouse about what you want to include in the prenup. There’s a lot you can talk through when you’re not getting billed by the hour. You both need your own lawyers; you should not be represented by the same attorney. For a straightforward prenup, you might pay $1,500 each. The prenup needs to be drawn up months before the wed ding, not days — it’s not something you slap together and sign in the car on the way to the ceremony. A shotgun prenup might not hold up in court. Be honest. Concealment of any asset or debt can invalidate your prenup. Everyone involved — including the lawyers — should sign the documents. If you move to another state, have a local attorney review the agreement in order to see whether you need to make changes. Why do couples need to address money issues early on? If you aren’t in sync financially, there’s little hope of sustaining a happy relationship. Here’s what I suggest — whether you’re dating, married or remarried:
Hold on to your independence. No matter how long you’ve been together, keep at least one credit card in your name only. This enables you to maintain your own credit report and score; if you break up or are widowed, that makes it easier to start over. Watch your property. It’s not uncommon for women to enter a relationship with sizable assets of their own. You have every right to retain 100 percent ownership of anything acquired before your marriage. Consider ‘for richer or poorer.’ Once you wed, you and your spouse are legally responsible for debts accrued during the marriage. Even if your guy seems as if he has his act together, don’t assume. Start by swapping your FICO credit scores (myfico.com). Both of you should have good scores (at least 650), or you could be heading for serious stress. Use your scores to open a broader conversation about money. What are your views on spending and saving? Do you agree paying 15 percent interest or more on credit card debt is stupid? How about bouncing checks or missing bill payments?
Next, move on to your dreams: If you have kids, are you on the same page about the cost of education? Do you expect to help out your parents after they retire? Ignore these important talks, and you may end up panicked and with a partner who doesn’t respect you. You deserve better.
Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC
Oct
4
A Good Perspective on Settlement Versus Trial
Filed Under Alternative Roads in Family Law, Divorce & Separation, Mediation & Collaboration in Family Law | Leave a Comment
This recent post (reprinted below) at the Minnesota Divorce & Family Law weblog run by Gerald Williams illustrates a point that most family lawyers understand well. There needs to be a fundamental meeting of the minds for two parties to agree on a settlement. If not, settling those fundamental issues and getting the two divorcing parties to have that meeting of the minds is best left to a third-party, uh, “decider.” This doesn’t mean that you can’t go back to negotiation a settlement on those terms, but you won’t get over that hump until
Given that it’s the playoffs, let’s use baseball as an analogy - if you can’t agree that you’re going to play baseball, it doesn’t matter whether you use aluminum or wooden bats, who bats first, or who gets to wear the home colors.
Settlement Versus Trial
Why do some divorce and child custody cases settle out of court, and some cases have to go to trial? There are many factors that determine whether a family law case will settle outside of court, the most important which involve the willingness of the parties to compromise, and the willingness of the attorneys for the parties to facilitate that compromise.
Preparing for and proceeding with a family court trial is a long, expensive process. If the parties are close to reaching an agreement, but are unable to arrive at the final stipulated terms, both parties are likely to spend more on the expense of going to trial than they would if they EACH accepted the other party’s terms.
Conversely, if the parties are not close to reaching an agreement, there most likely is a principal issue that needs to be addressed by the family court. Examples are whether there should be any spousal maintenance at all; whether an antenuptial agreement is void or not; or whether a third party is entitled to visitation with a minor child.
In the first example, the AMOUNT of spousal maintenance might be resolved by compromise, but only if both parties presume that there will be spousal maintenance. Otherwise, the dispute about whether there should be spousal maintenance at all may need to be decided by the court. In the second example, how to apply the terms of an antenuptial agreement can be negotiated and compromised. But if there is a fundamental question about whether the antenuptial agreement is even valid or not, the family court may need to render a decision. In the third example, discussions about a visitation schedule cannot take place if there is disagreement about who is entitled to have the court-ordered right to have the subject minor child in their care in the first place.
One key advantage to a settlement out of court is the fact that the parties have the final say in the terms of their divorce or child custody dispute, rather than the court. In all likelihood, the parties will be assenting to a conclusion that is not as favorable as their best possible result in court. But it may be worth avoiding the risk of going to court and not getting the best possible result.
Posted by Victor J. Medina,
Medina, Martinez & Castroll, LLC