Nov

29

Alternate Dispute Resolution Options for Divorce in New Jersey - Part II: Early Settlement Panels

Filed Under Alternative Roads in Family Law, Divorce & Separation, Family Law Basics | 1 Comment

Even in the most amicable of divorces, issues often arise which create disagreements between spouses, which invariably result in delays in the divorce process. The most common issue attributable to disputes and delays is the division of property and finances. At some point, usually early on in the process, spouses want to know who gets what and how much of it. These may seem like simple inquires, but settling on a fair and equitable distribution of property and finances can be a long, difficult and costly proposition.

For years, many of the state’s family courts were plagued by the backlog caused by divorce cases with unresolved financial issues. Cases often lingered for years before any resolution was reached. In fact, I read about one divorce case that took five years to resolve. In an attempt to alleviate the backlog of divorce cases, the courts began experimenting with programs aimed at facilitating the resolution of disputed financial issues between spouses. One such program was the Matrimonial Early Settlement Panels, commonly referred to today as Early Settlement Panels or ESPs.

The first Early Settlement Panels began in Morris County, New Jersey in 1977. Today, ESPs exist in every county in New Jersey and is mandatory unless the divorce is uncontested or a settlement is reached. Though there is a lack of procedural uniformity in how ESPs are managed from vicinage to vicinage, the scope and purpose of ESPs has remained the same for three decades. The Panels are a form of settlement conference which is free to litigants and staffed by volunteer, unpaid male and female divorce attorneys. Panel attorneys must have at least five years experience in the practice of matrimonial law, and must be a member of the New Jersey Bar for at least four years. The Panels only assist with resolving financial issues such as child support, alimony, property division and attorney fees, and will not hear issues related to child custody or visitation. There are other court mediation programs in place that deal with custody and visitation.

Divorce cases usually end up before ESPs after the filing of a divorce complaint, answering of pleadings, filing of financial disclosure forms and the completion of discovery by way of interrogatories or depositions. When meeting with a Panel, attorneys and their clients present their respective cases. The Panel will hear arguments, review evidence, and then make a non-binding recommendation of settlement. The recommendation is based on the Panel’s determination as to what is a fair and equitable settlement. The parties can accept, modify or reject the Panel’s recommendation. If the recommendation is rejected, the court may order the parties to Economic Mediation in a further attempt to reconcile unresolved financial issues. If the recommendation is accepted, the parties can settle their divorce at that time. However, if no resolution is reached, then the case will be scheduled for trial.

ESPs are an effective medium in settling divorce matters and are cost-effective alternatives to trial. Every attorney is ethically required to discuss alternative dispute procedures with their clients, including mediation and arbitration.

Posted by Jason Medina -
Medina, Martinez & Castroll, LLC

Nov

28

New Jersey Divorce & Family Law Blog Featured in Local Business Journal.

Filed Under Attorney-Client Relationship, Blogroll, Family Law Basics | Leave a Comment

I was recently featured in an article about blogging and got the opportunity to discuss this blog.

You can read the story here at the Princeton Business Journal.

Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC

Nov

16

How Attorneys Choose Clients: My View

Filed Under Attorney-Client Relationship, Divorce & Separation, Family Law Basics | Leave a Comment

My fellow Mac Lawyer, Ben Stevens, of the South Carolina Family Law Blog had a great post of original content on how attorneys choose clients.

I had a few thoughts and some questions for Ben.

First, unless I’m making a conscious decision to accept a matter pro bono, I make it a point to only take on clients where I am sure I’m going to get paid. This could be from funds that the client has (we often represent the “advantaged” spouse) or from funds that we get from the advantaged spouse to even the playing field. This isn’t a cold decision, but I have an obligation to provide for my family and I can’t, literally, afford to expend time and effort where there isn’t a reasonable assurance of getting paid for my effort.

(As a quick aside, I find it insulting the way that clients will regard bills from their attorneys as “optional” to pay. It’s one of the reason that I bill on a flat fee basis for many stages of a divorce proceeding.)

As for other reasons not to take a case, I find that potential clients who have been through a few other attorneys can be potential problem cases. Typically, I’ll know one or two of the prior attorneys, whose opinion and judgment I respect. If they give a client their opinion on a course of action or settlement and the client rejects it, chances are that I won’t be the right attorney or law firm for them.

Finally, I’d be interested in hearing how Ben’s use of flat-fee billing works to either get or drive away certain types of clients.

Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC

Nov

11

How to Save on Legal Fees for Your Divorce

Filed Under Attorney-Client Relationship, Divorce & Separation, Family Law Basics | Leave a Comment

You might think that a lawyer would be opposed to telling you how to spend less money on his fees, but not so. Most of the suggestions made below, by another lawyer no less, are things with which I whole-heartedly agree. A lot of the time a lawyer spends on the stuff he’s telling you to do yourself or avoid all together are the kind of work a sophisticated lawyer would rather not do anyways.

The truth of the matter is that our firm is comprised of specialists. While we can do the routine work, a better use of our skills is on those complex matters. For the rates you are paying for our services, you should expect that we’re going to work the really difficult stuff. The other stuff is just a matter of your pain threshold for the monthly bill. I suggest that you manage your legal budget for divorce accordingly.

Here is the entire article by Jim Harding:

Divorce is wrought with cost. The emotional cost of a failed relationship. The cost to children living in a two home family. The cost of maintaining two households. Then, of course, there is the cost of a lawyer. At hundreds of dollars per hour, legal fees in a divorce can easily be in the tens of thousands of dollars. The fact of the matter is that competent legal representation is expensive. That does not mean that you can’t help yourself to save money on attorney’s fees and costs associated with divorce. Here are ten tips that can help.

1. Always remember that time is money.

First you must understand how lawyers bill. Most of us are comfortable with the idea of a fixed fee. We see an item on the menu, with a price right next to it. Fixed, and straight forward. Legal billing is different. As Abraham Lincoln explained it, “a lawyer’s time and advice are his stock in trade.” In other words, lawyers bill for their time. The more time the lawyer invests in your case, the higher the legal fees will be. With this basic understanding you will be better able to comprehend and manage legal fees.

2. Understand when your lawyer is on the clock.

Time is the commodity. If you are unclear, don’t be afraid to ask your lawyer what he does charge for, and what he does not charge for. People don’t always know that time on the telephone can be charged. Sometimes lawyers charge for any time spent dealing with the case — including you taking your lawyer out to lunch. Get clarification so that you don’t unknowingly request services that you will be billed for. Also be prudent in your purchase of legal services. The more of your lawyer’s time that you use, the more you are going to pay. Appreciate that your lawyer needs to be kept apprised of significant events in your life. However, you do not have to swamp him with minutiae. Making sure your lawyer has knowledge of every hour in your days is not necessary.

3. Use your time with your lawyer wisely.

Most lawyers bill in incremental time. The concept is not unique. Most service professionals (doctors, dentists, accountants) base their efforts, and prices, on measured units of time. In the case of lawyers those units are typically blocks of minutes. For instance, many lawyers will be in six minute increments. As soon as the work starts, you are charged every six minutes. As an example, at $200 per hour, one six minute increment has a value/cost to you of $20. If you have a two minute conversation with your lawyer, that is one six minute increment, or $20 in fees. If you have a seven minute conversation, that is two six minute increments, or $40 in fees. To realize maximum efficiency under this system plan ahead before meeting with or talking to your lawyer. Save your questions for one conversation, rather than calling up your lawyer every time you have something on your mind. Four two minute conversations equals $80 in legal fees. One eight minute conversation equals $40 in legal fees.

4. Your lawyer is your legal representative, not your psychologist.

Divorce is stressful. You want someone with whom you can talk through your emotional issues. Your lawyer is not that person. Lawyers are trained in legal problem solving, not mental health. Therapists, psychologists, psychiatrists, and other mental health professionals are better trained and equipped to help you resolve your emotional issues. Most likely there services will also be less expensive.

5. The more work you do for you lawyer, the less work your lawyer will have to do for you.

Lawyers require information. The lawyer’s first, best, most obvious source of information is her client. Skilled divorce lawyers have tools in place to help them gather the information that they must have. Questionnaires, checklists, etc., are all common information gathering devices. If your divorce lawyer utilizes any of these tools, it is a wonderful opportunity for you to save money. Invest the time and energy to complete the homework your lawyer gives you. If you don’t, your lawyer will have to invest the time (hence your money) to gather the information elsewhere. Along the same lines, educate yourself. The more information you have in your own mind about your family expenses, assets, obligations, etc., the faster and easier it will be for you to explain your situation to your lawyer.

6. Be your own legal assistant.

Information is a recurring theme in divorce. As we have explained, your own lawyer requires information to adequately represent you. Another frequent component of divorce is sharing of that information with the other side. In fact, California, where I practice, imposes a significant information disclosure obligation on the spouse who files for divorce. Copies of bank statements, vehicle title certificates, investment account statements, loan documents, credit card statements, pay stubs, tax returns all have to be delivered to the adverse party. If you can provide these records to your attorney, he will not have to take the time to get them for you. Another cost saving measure to keep in mind is photocopying. Copy machines are an overhead item for lawyers, that is passed through to the client. The cost of photocopying in a law office can frequently run ten, twenty, fifty cents per page. For large volume copying jobs a cheaper alternative is the commercial copy shop. Ask your lawyer if you can take the originals down to the copy shop, and doing or pay for the copying yourself. You will save on per page charges, and the time charges. It is not unheard of for clients to also act as “runners” for the lawyer. Filing documents at the courthouse, delivering documents to the other attorney, can all be cheaper alternatives to attorneys, legal assistants, or couriers doing the work.

7. Get smart, not mad.

At some earlier point in time you and your spouse exercised the privilege of being adults by marrying the other; and you each committed yourselves to the responsibilities that go along with marriage. Don’t think that just because the marriage is ending, the responsibilities of being an adult are abolished. Each spouse voluntarily entered into the marriage, now each spouse must deal with its consequences. In the final analysis, if there are any problems that manifest themselves during the divorce, their ultimate cause can be pinpointed exactly - that being the point in time when the spouses got married. Look at your divorce as a business transaction. You are after the best economic result. It makes no sense to pay a lawyer a $1000 to get you something worth $100.

The frame of mind of the spouses in a marital dissolution action can often be the most significant component of the entire case. If one or both persons bear(s) resentment or hostility to the other, any potential for efficiency that the case may have becomes vulnerable. While the attorney can put forth a valiant effort to maintain control of the case, the effort usually succumbs to the client’s hostility. From this comes two certainties: first, the action is going to take longer to conclude; second, attorney’s fees are going to skyrocket, because more attorney time will be necessary.

8. Compromise, compromise, compromise.

There is a saying in divorce law with respect to the husband and wife: “No one wins. It’s more a question of how well the mutual loss in controlled.” Another way of putting it is, “how much money can I stop my lawyer from making?” Regardless of where you live, the divorce system is driven by equity. In other words, the court is going to try and realize fairness. Understanding that this middle of the road approach controls, it makes sense that you help yourself get to the middle of the road. Be flexible, be creative, be compromising. Work toward settlement, rather than entrenchment. The more amicable the conduct between the spouses, the more likely the matter can be resolved quickly. The less time the lawyer spends on the case, the less time the lawyer bills for. By law the spouses must deal fairly and in good faith with each other. It is much easier, and cheaper, to follow the law and bring the matter to a swift conclusion, then it is to pursue some unreasonable objective (i.e., vindication against the other spouse, attempting to come out of the matter better than the other spouse by hiding assets, etc.). The rules exist for a reason. Play by them!

9. Consider alternatives to litigation

To get divorced you have to go through the legal system. However, the last place you want to find yourself during your divorce is in the courthouse. Court appearances, hearings, and trials all take an inordinate amount of time. And as we know, time is money. It’s not uncommon to have to pay a lawyer for four hours of sitting and waiting in the courtroom, just so that she can speak to the judge for ten minutes. Fortunately, there are alternatives. Divorce mediation is a very effective procedure for realizing a settlement and completing your divorce. The parties meet with a neutral attorney who renders advice, gives guidance, facilitates a settlement, and processes the paperwork with the court. Typically mediation is cheaper than litigation. Another alternative is Collaborative divorce. This is a process whereby the spouses and their lawyers contract to keep the case out of court. Before resorting to war, consider if your circumstances will allow resort to one of these alternative methods of resolution?

10. Ask yourself if you even need a lawyer?

An acquaintance approached me the other day with the bad news that he and his wife were breaking up. He was bewildered at what to do next. I asked him where things stood between him and his wife. He explained that neither was mad at the other, but that they had simply grown apart, and had come to the realization that there lives would be better apart, rather than together. They had even been able to sit down at the kitchen table and resolve all of their issues. Property division, child custody, support. They had put it all down on paper. Now they wanted to make it all right with the courts. Then he asked if I could help? I told him I could, but that I was probably not his best option. I explained that if he was not interested in getting legal advice along with his court proscribed paperwork, that he should consider preparing the court documents himself, or with the help of a divorce paralegal. There are an abundance of self help legal guide books that provide more than enough information for many people to do their own divorce. And paralegals are a viable, affordable option for those people who do not want to, or cannot prepare their own legal papers. Just remember, it is against the law for anyone other than a licensed lawyer to give legal advice.

Divorce is expensive. No doubt about it. However, that does not mean that the expense is uncontrollable. With foresight, organization, effort, and practicality it is possible to reduce the legal costs associated with divorce.

John E. Harding, J.D. is a lawyer with Harding & Associates in Pleasanton and San Francisco, California. His practice emphasizes all areas of California family law including divorce; separation; child custody, visitation, and support; spousal support, property division; and divorce mediation. He can be reached by telephone at 1-800-417-9220 ext. 202, or by e-mail at jharding@hardinglaw.com. The Harding & Associates website is located at www.hardinglaw.com.

Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC

Nov

9

How To Prepare For Divorce

Filed Under Divorce & Separation, Family Law Basics, Property & Asset Distribution | Leave a Comment

Here’s a great article from Jeanne Hannah from Michigan on how to prepare for divorce. I’ve copied here in its entirety.

Preparing for divorce

New clients sometimes ask me about ways in which they can help ensure a good result in their divorce and/or custody cases. Most lawyers are busy people and will be happy when clients help them prepare and settle the case. Below are some things that you can do to help your lawyer get a good result for you. As it happens, many of these things will help you save money as well.

Be prepared. When the writing is on the wall and you know that divorce is inevitable, you should gather documents and information about important issues, such as your finances. You may be the spouse who has handled finances, so you will know exactly what assets are owned by you and your spouse. Or, on the other hand, you may be the homemaker who has never handled the finances. You may help your lawyer uncover unknown assets or you may just have documents that show the existence and values of assets. Either way, if you are able to assemble documents and information for your lawyer, this will help save your lawyer time. This, in turn, will save you money in the attorney fees that result when your lawyer has to conduct pretrial discovery to find assets. This may be a second marriage for you and perhaps also for your spouse. Therefore, one or both of you may have assets that will be considered “separate property” by the Court. Having evidence of the existence and value of these assets as well as information about whether they have remained separate and are thus usually protected from division in a divorce will help your lawyer evaluate your case and assess the potential for distribution. Here’s a link to a list of the types of documents that you should assemble. Documents to bring to your first consultation.

Be flexible and prepared to accept change. A respected family court judge once said to some litigants in his courtroom: “Remember, when you cut that tablecloth in two, it’s not going to cover the same table.” When your family separates into two units, the resources that one family counted on will be severely stretched. Examine your short-term and long-term goals, and remain open to change. In almost every divorce, someone has to start over. Often, both parties find it difficult to manage financially. Accept the need to compromise. Remain open to the reality that your home may be smaller and you may need to cut back in other ways as well.

Be truthful with your attorney. Your lawyer can’t help you overcome setbacks that may arise if you fail to provide accurate and truthful information. Everything you tell your attorney is confidential.

Prepare to use specialists. Many family lawyers are specialists. If your case has any unusual factors, you’ll want to be sure to find a lawyer who doesn’t dabble in family law. Nevertheless, while that lawyer will help you with the law, facts and procedure that will apply to your case, he or she will often recommend other specialists to help. Your divorce can move faster and better if you use (as needed) a:

Counselor/therapist, if you are sad or mad. Normally, these professionals charge less by the hour than your lawyer. Moreover, your lawyer is not trained as a therapist. Use your money wisely and don’t call your lawyer when you should call your counselor instead.
Financial planner, if you don’t have much experience in finances.
Business valuation expert for small businesses.
CPA for taxation issues
Child specialist to help find solutions for custody, parenting time, child support issues, living arrangements, etc.
Ask your lawyer for recommendations to a specialist. He or she is likely familiar with the specialist who is most suited to help you with the issues at hand.

The big picture. Divorce isn’t about “winning” or “losing.” In fact, many family law specialists will tell you that divorce is a “lose/lose” situation for all involved. If you avoid score-keeping and if you don’t let issues that don’t matter get in the way, you can make this a win/win situation—or at least you can make the best of a bad situation. If you find yourself faltering, step back, take a deep breath, go for a walk, cool off.

Mediation at the earliest opportunity, whether you and your spouse go alone or whether you each take your attorney with you is a great idea. It’s easier to compromise if both of you are not already polarized—if you haven’t backed into a corner (or feel as though you’ve been backed into a corner) and feel like you have to defend that position.

Make a list of the goals, needs and interests that are important to you, ranking them in order of importance. Then focus on those and don’t allow anyone to distract you.

Do a reality check. Ask your lawyer if your goals are realistic. If your lawyer tells you that no matter how much you want something, the judge is unlikely to award it to you, listen to your lawyer. Don’t spend half of your property settlement on attorney fees fighting for an unrealistic goal.

Be empathic to your spouse’s position. There are a number of reasons why empathy can help you. First, if you are parents, remember that you’ll be co-parents for the rest of your children’s lives. This means that you’ll want to remain civil to your spouse so that you can at least tolerate being in the same room for graduations, weddings, baptisms, and so forth.

About 90-95% of divorces settle out of court. Therefore, it’s important to keep all avenues of negotiation open. Success in negotiation means figuring out what the other person’s goals are. Listening to your spouse’s requests and offers—really listening—will help you figure out what will motivate him or her to settle. Think about what is available as a “trade-off.” What will he or she accept in exchange for something that means a lot to you? Remember, settlement involves thinking of all of the options. Creative solutions may be the key to resolving property settlements or settling issues revolving around parenting time, custody or support issues.

Reduce conflict. One of the questions that I always hear at the initial consultation is “How much will my divorce cost?” My answer is always the same. “I can’t give you an exact figure. The more you and your spouse fight, the more it costs.” Reducing conflict and working toward solutions is the best way to ensure that your divorce is not costly. Moreover, conflict consumes more than money. It consumes energy. It can disrupt your life. It can cause immeasurable harm for your children.

Remember, this isn’t the end of the world. Facing the end of a marriage can be very frightening. And no one likes to feel like a failure. When you and your spouse married, you had high hopes for the future. Seeing those hopes dashed to the ground can be disillusioning at best. This is one of the most important reasons why you will benefit most from taking the high road, from giving a little more than you thought you would or should. At the end of the day, you want to be able to walk away, to take a break, and to start over. You want to be able to hold your head up, knowing that you weren’t a cheat and you weren’t disrespectful. You need to be a whole person to do that.

This last reminds me of a favorite quote from Edith Wharton, one I used to keep on my letter slide until I’d looked at it so many times, I’d finally memorized it:

In spite of illness, in spite even our arch-enemy sorrow, one can remain alive long past the usual date of disintegration if one is unafraid of change, insatiable in intellectual curiosity, interested in big things, and happy in small ways

Edith Wharton, A Backward Glance

You’ll find much more information about divorce, custody, property settlement and other issues on my website at www.traversecityfamilylaw.com.

Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC