Mediation: Why You Should Always Have a Review Attorney

Mediation is often a lower-cost, less acrimonious alternative to litigating a divorce. A skilled mediator can help parties communicate, focus their issues, and ultimately resolve their matter before any involvement in the court system. It is a very useful process and one that I recommend to most clients.

Mediators, by design, have limitations. In order to be effective, it is of the utmost importance that a mediator remain impartial. Because of that, a mediator is not an advocate and cannot give legal advice. A mediator cannot tell you if you have made a good deal or tell you what you would be likely to expect at court. While a mediator can give you general information on the law, only an attorney can provide specific advice on how to apply the law to your personal situation.

An experienced mediation review attorney who understands the mediation process and shares your goal of reaching agreement is an invaluable ally in the process. While most of the time, your attorney will not participate in the mediation process, they can help prepare you to negotiate on your own behalf, both before and after each session. Most litigants, through no fault of their own, have little understanding of how to make decisions on child custody, support, alimony, and equitable division of property. A mediator can explain the issue but only an attorney can give you advice about what kind of agreement is reasonable to make.

If you are going through mediation, contact me to discuss review options. I offer flat fee arrangements for mediation review and uncontested divorce representation. I also provide mediation services if you are in need of a mediator.

The New Jersey Divorce Process

A New Jersey divorce matter begins with pleadings, proceeds through discovery, and culminates in trial. It is a complicated process, and the best way to navigate it is to contact an experienced family attorney. An attorney will assist you through the following stages of litigation:

Pleadings

In New Jersey, a divorce is started by the filing of a Complaint for Divorce. A complaint states the cause of action and requests relief, which can simply be the granting of the divorce or it can be issues such as custody, child support, alimony, equitable division or other issues specific to the divorce. The complaint must then be served on the defendant, typically by the county Sheriff, though service can be made in a variety of ways.

Once the complaint has been served, the defendant has thirty-five days to file an Answer to the Complaint. The answer admits or denies each allegation in the complaint and requests relief. The defendant also has the option to file a Counterclaim, which states an affirmative cause of action.

If a defendant fails to answer in 35 days, the plaintiff can request Default, in which the plaintiff asks the court to grant the divorce without further participation by the defendant.

Discovery

The procedure varies by county, but in Camden County, where I typically practice, the court will schedule a case management conference where deadlines are set regarding discovery. The discovery phase of litigation can involve interrogatories (written questions), document requests, depositions (testimony under oath), subpoenas to third parties, appraisals, or other information exchanges.

The discovery phase is also where experts are disclosed and reports produced. Experts are necessary any time a matter requires scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue.

In addition to discovery, Motions can be filed at any time during the litigation process requesting the court to take action. Often, motions are filed to request temporary orders while trial is pending on questions such as child custody or support.

Trial

Only about five percent of divorce cases go to trial. New Jersey courts generally do whatever they can to encourage the parties to settle their case. If they have children, parties will be sent to mediation early in the matter to attempt to work out a custody schedule. Parties will again be sent to mediation later if they cannot agree on the equitable division of property. For this reason (among others), it is often to the parties’ advantage to attempt to mediate their divorce before proceeding with litigation.

If a case proceeds to trial, both parties may testify, present evidence, and call witnesses to convince the judge to rule in their favor. Depending on the complexity of the matter, trial can last for one day or for several weeks. All evidence presented must comply with the New Jersey Rules of Evidence, and all procedures are subject to the control of the court.

If you are considering filing a divorce matter, contact me today to schedule a free consultation, and we will discuss how I can help you litigate your divorce in the most advantageous manner.

Should I Mediate My Divorce?

Divorce mediation is a method that spouses in New Jersey or Pennsylvania can employ to settle their differences in a divorce action. Mediation is a process in which an impartial third party, known as the mediator, facilitates a discussion between the parties with the goal of reaching an agreement regarding parenting time, equitable division of property, spousal support, child support, and any other issues involved in the divorce. Compared to litigating your issues in court, mediation has several advantages:

Mediation is Usually Lower Cost

Mediation takes place in an informal setting, with only the mediator being compensated during each session. While resolving all issues can take multiple sessions, resolving the same issues in court, with both parties represented by attorneys, can require formal pleadings, discovery, motions, oral arguments, plenary hearings, and full trials. The American Bar Association estimates that the cost of mediation is generally 40-60% lower than litigation. Even if both parties employ attorneys to review their agreement and file the appropriate documents with the court, mediation is often the most cost-effective option.

Mediation Allows You to Make Your Own Decisions

In court, decisions are made by a judge, who is constrained by laws and regulations regarding what decisions can be made. In mediation, parties are free to craft creative and personalized solutions, rather than the one-size-fits-all approach of the courts. In mediation, the parties are the ones who decide what’s fair, and nobody is forced into anything. The parties retain control over how their case is ultimately decided. Additionally, the parties can decide to keep their case private, unlike in court actions which are matters of public record.

Mediation is Generally Faster Than Litigation

Litigating a divorce through trial can take years. New Jersey and Pennsylvania Courts attempt to have divorce matters completed in one year, but many cases end up taking longer. By contrast, mediation matters are completed as soon as the parties agree, often in a matter of weeks or months.

Mediation is Often Less Stressful for Parties and Their Children

Litigation is adversarial, while mediation is cooperative. Most of the time, this results in less stress for all involved because parties feel in control of the process. In addition, there are often beneficial effects on the family’s children, who see their parents cooperating and working through their disagreements. Acrimonial litigation battles can often have negative effects on children who understand that their parents are fighting, sometimes for years at a time. By going through a cooperative, non-adversarial process, parents can set a good example for their children regarding how to resolve differences. In addition, mediation helps divorcing couples maintain a good relationship, with higher satisfaction rates than litigation.

In Some States, Mediation is Mandatory

In some states, such as New Jersey, parties are required to attend a required mediation session before going to trial. This means that either way, the parties are going to attempt to mediate their disputes. It’s just a question of when. Why not try mediation before spending thousand of dollars litigating the case?

Disadvantages of Mediation

The main disadvantage of mediation is that it relies on the cooperation of both parties. While it is almost always in both parties’ interests to cooperate and come to an amicable resolution, nobody can force parties to agree. This means that if the opposing party refuses to agree to a reasonable settlement, you may end up in court anyway, after going through the time and expense of mediation.

Another drawback of mediation is that there is no court oversight to ensure that an agreement is fair. There is no judge to decide who gets what, only the parties themselves (with the assistance of a mediator). Sometimes, this means that parties can feel pressured to agree to an unfair deal.

In mediation, there is no formal discovery process. Parties voluntarily exchange information, but it is informal and not compulsory. If a party withholds information, there is less of a chance that the information will be discovered.

Should You Mediate?

The short answer is “yes.” I recommend mediation to almost all of my divorce clients. If parties attempt mediation and it fails, they will have lost some time and money, but typically a small fraction of what it costs to litigate a case. In addition, most mediations reach a satisfactory resolution. The ABA estimates that mediation is successful 70 to 80% of the time, with higher rates of satisfaction and compliance, as compared to litigation.

The lack of court oversight and discovery can be mitigated by having a skilled attorney represent each litigant. An experienced family attorney can advise parties about the merits of any proposed agreement and offer recommendations regarding a settlement position. An attorney can also offer advice regarding what records are necessary to establish the parties’ income, assets, and other relevant factors.

I wholeheartedly recommend giving mediation a try if you have a divorce matter to resolve. If you are interested in mediating your divorce, contact Fenza Legal Services to schedule your free consultation.

BDSM, Kink and Child Custody

triskelion_square_sticker_3_x_3By far, the most common question I get from people who practice consensual, risk-aware BDSM is what effect their nontraditional sexuality may have on their custody and parental rights. Unfortunately, there is no easy answer. In child custody matters, social workers, judges, and other administrative personnel often have a great deal of discretion, so individual preferences and prejudices can often influence the decisions that get made.

Pennsylvania and New Jersey both have agencies which are authorized to temporarily terminate the parental rights of any parent or guardian who meets certain criteria. Parental rights can be terminated permanently by court order. If your parental rights have been terminated or are in danger of being terminated, it is imperative that you speak with a qualified attorney immediately to protect your rights.

In New Jersey, the most common grounds for terminating the parental rights of a parent is that termination is in the best interests of the child. To terminate on those grounds, the New Jersey Division of Child Protection and Permanency (DCP&P) must prove six elements:

  1. You have harmed or will continue to harm your child.
  2. You are unwilling or unable to end the harm or danger of harm you pose to your child (the harm may be that your child is emotionally attached or bonded to his or her current caretakers and would suffer serious and lasting emotional damage if separated from them), or you are unable or unwilling to provide a safe, permanent home for your child.
  3. The child is being harmed because he or she does not have a permanent home.
  4. DCP&P has done what it was required to do to help you correct your problems and to arrange for you to visit with your child.
  5. There are no reasonable alternatives to termination of parental rights, such as placing the child with a relative.
  6. Terminating your rights will benefit the child more than it will hurt the child, usually because someone is waiting to adopt him or her.

Other grounds for termination of parental rights in New Jersey include failure to correct problems, abandonment, conviction of certain crimes against the child, or a court finding that you committed a serious act which put your child in danger of death or serious bodily injury. In Pennsylvania, custody may be terminated because, among other things,

[t]he repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

In Pennsylvania and New Jersey, when there is a custody dispute between the two people already designated as legal parents or guardians, child custody matters have as the polestar consideration the “best interests of the child.” Courts are tasked to make the custody determination that will best serve the child’s interests. Courts will operate under a presumption that the best interests of the child are served by maintaining a close relationship with both parents, but that presumption can be overcome by presenting evidence to the contrary.

While atypical sexual activities may affect a custody case, the good news is that attitudes are changing, and courts and agencies are much less likely than in the past to consider consensual BDSM or kink to be inherently harmful. The biggest change has been from the Diagnostic and Statistical Manual of Mental Disorders, which is the go-to book for mental health professionals involved in diagnosing mental disorders. The newest version, the DSM-V (published in May of 2013), recognizes a difference between “paraphilias,” which are kinks or other unusual sexual desires, and “paraphilic disorders” which require intervention. The effect of the change is that mental health professionals across the county are now much more likely to view BDSM or kink, if practiced in a risk-aware and consensual manner, as a personal choice rather than inherently problematic. In fact, many Pennsylvania and New Jersey judges may be annoyed by any party that attempts to use a partner’s kink against them if it has no effect on the children.

However, old attitudes die hard, and some courts and agencies still view kink and BDSM as disordered behavior and may use it as grounds to terminate or limit parental rights. To protect themselves as much as possible, parents should take the following steps:

  • keep all bedroom activities in a locked bedroom and out of earshot of all children;
  • keep all sex toys, equipment, erotica (including tasteful art), or other sexually explicit material in a locked drawer and away from children;
  • take care that children are not exposed to a BDSM dynamic outside of the bedroom;
  • password protect your computer. If children have access to your computer, use a separate (password-protected) user account for any lifestyle-related online activities.

Even taking these steps, however, is no guarantee that your lifestyle won’t be unfairly used against you. In particular, there is always the danger that parties may be dishonest about what actually occurred. The most important step in any proceeding is to speak with a qualified attorney to make sure that your interests are protected.

What is a Legal Retainer and How Does It Work?

Most attorneys (and many other professional service providers), when contracting at an hourly rate, will require an up-front payment known as a retainer. The retainer is placed in the attorney’s trust account and then used to pay for legal fees earned by the attorney and expenses related to the client’s matter. A retainer is the client’s way of guaranteeing to the lawyer that the client is financially able to employ the lawyer’s services and is committed to funding the matter.

The retainer still belongs to the client until it is earned by the attorney or used for legitimate expenses, and must be returned if unused. For instance, if a client pays a $3,000 retainer, and the attorney only accrues $2,000 of billing and expenses on the matter, $1,000 is returned to the client.

Generally, a retainer is not meant to cover the entire cost of a matter. Rather, it is a prepayment for a certain number of hours of the attorney’s services and expenses associated with beginning a matter. The retainer is an important way that the attorney and client establish a trusting relationship. By funding a retainer, the client is indicating that they can trust that the attorney will hold their funds for them until earned, and the attorney is indicating that they trust the client to continue the financial terms of the arrangement after the retainer is depleted.

For further information regarding retainers or other financial terms of representation, contact Fenza Legal Services with any questions that you have.

Is a Marriage Planning Agreement Right For You?

wedding-rings-152336What is a Marriage Planning Agreement?

A Marriage Planning Agreement is a negotiated contract between you and your spouse, either before or during your marriage, which memorializes the expectations of the couple in a legally enforceable document.  It is similar to a business partnership agreement, except instead of the terms of a business, the parties are agreeing on their expectations for one another in the marital relationship. A Marriage Planning Agreement covers topics such as:

  • Who owns property that was held before the marriage? Who owns property that is acquired during the marriage?
  • Will one spouse be financially supporting the other? What is each party expected to contribute to the household?
  • Do the parties have children together? Are they expected to? Will there be a primary caretaker?
  • What happens in the event of divorce? Should either spouse pay alimony? For how long? Who owns the house?

Like a business partnership agreement, a Marriage Planning Agreement is an indispensable tool for ensuring that both spouses have the same expectations for the marital relationship. Nobody would begin a business partnership without negotiating a partnership agreement. It is equally prudent not to begin a marital relationship that will hopefully last the rest of your lives without clear communication about what each person expects from the relationship.

A Marriage Planning Agreement can give you maximum flexibility to address issues your way, without interference from the government or anyone else who wants to tell you how your marriage should be.

Why Get a Marriage Planning Agreement?

1. You Already Have One

contractWhen you get a marriage license, you are subject to hundreds of laws and regulations which govern every issue addressed in a Marriage Planning Agreement. The difference is that when you negotiate an agreement, you are writing it yourself instead of the government writing it for you.

 2. It Encourages Communication

speech-bubble-1423322Before getting married, not many couples discuss their expectations with the level of detail necessary for a relationship expected to last several decades. A Marriage Planning Agreement can encourages couples to communicate in detail about all facets of the future of the relationship.

 3. It Prevents Future Litigation

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Divorce can be an ugly and expensive process. While couples rarely expect to divorce, it is a risk for even the best marriages. A Marriage Planning Agreement takes much of the stress and expense out of divorce by negotiating many of the terms beforehand.

If you’re interested in learning more, contact Fenza Legal Services to discuss your options today!