AAML NJ Blog

By Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

Divorce is a difficult process which can be emotionally draining and exhausting for all parties involved. While the divorce process may feel like it consumes your life from the very beginning, there are practical ways that can assist you to work with your attorney to streamline the process as much as possible and make the process feel less overwhelming. In order to ensure that you can resolve your matter as expeditiously as possible follow these seven tips on how to effectively work with your attorney during your divorce.

#1: Read and reread correspondence from your attorney: When you see an email from your attorney that appears lengthy, it can be intimidating and daunting, but sometimes lengthy correspondence from your attorney contains vital information and legal advice that it is important to your case. Even if you discuss the same information with your attorney over the phone, it is in your best interest to actually read all correspondence from your attorney as well. It is often difficult for litigants to retain all of the information about the law that they are given, which is why if legal advice is written, it is easier for litigants to reread the correspondence at a time that they are able to understand and emotionally process the information.

#2: Provide your schedule: Although the divorce process can feel like an all-consuming venture, attorneys understand that you have your own life and responsibilities. We acknowledge that you may have children to care for or an occupation that takes a majority of your time. We also acknowledge that you have holidays, vacation time, and travel plans. It is best to let your attorney know about your schedule, your feelings and your time-table. If you have a huge project at work, upcoming travel plans, business trip for work, your children’s spring break, or really anything that means you cannot concentrate on your divorce, try to make sure your attorney knows that. Sometimes litigants have other ongoing problems in their lives and simply cannot emotionally handle what is occurring in their divorce. If you advise your attorney you will not be available – physically or mentally -for a certain time, your attorney will be respectful. However, if you do not let them know, then they may continue to ask you questions regarding your position, how you want to proceed or follow up on documents they have been seeking. To make sure you and your attorney are on the same page, just make sure your attorney knows when you will not be available.

#3 Be Responsive: During your divorce, if you and your attorney are working to expeditiously resolve your manner, and it is not one of the times you are unavailable discussed above, then try to be as responsive as possible when your attorney or their firm contacts you. In being responsive, it is less about an immediate response and more about providing a complete answer. Often immediate responses do not directly answer the attorney’s question and means the attorney will need to ask more questions to obtain the necessary information. Answering your attorney as completely as possible means that your attorney will not have to continually re-ask and follow up on the same question. This will make the communication between you and your attorney more efficient, which also means less costly.

#4 Be Transparent: While you should be answering your attorney’s questions as completely as possible, you should also make sure you are providing them with all of the pertinent information – the good, the bad and the ugly. Your attorney can only properly advise you of how you should proceed if the attorney knows ALL the facts – even if you believe some information is unfavorable or embarrassing. In order to properly protect you and your interest, the attorney needs to know the potential issues that could arise. Attorneys know how to represent you even if you have had some unflattering past transgressions. Therefore, it is best to be candid and straightforward with your attorney. Your attorney will not think any less of you, but if something you hide from your attorney becomes an issue later, it could cause a strain on your attorney-client relationship.

#5 Keep Your Attorney Informed: During the divorce process, and often during post-judgment litigation (i.e. you are already divorced), there are usually ongoing problems festering between the parties. The problems can sometimes be resolved through a quick letter or a quick conversation between attorneys, but if there is an ongoing problem that needs Court intervention, then it is better if your attorney is already aware of the ongoing issues. If Court intervention is necessary and your attorney is already aware of the issues, then you and your attorney will not need to spend extra time and energy playing “catch-up” on the events that occurred over the past few weeks, months or even years.

#6 Keeping Logs: Regardless of the issues in your case, it is always a good idea to keep a log of what is occurring between you and your spouse or former spouse. While it is suggested to keep your attorney informed of what is going on (see #5), it is easier for you than your attorney to keep a log of events and to compile documentation, such as text messages or emails, that demonstrate what transpired and is outlined in your log. It is your daily life. No one can monitor it as well as you can – especially as the events are occurring. A log of events is often seen in cases where there are parenting time issues such as missed parenting time, interference with parenting time, late pick-ups or drop-offs, missed extracurricular activities, etc. If you keep a log of these events, that log can be used to demonstrate the problems that keep occurring and how often the problems occur. These logs are often utilized as critical exhibits in motions. For financial issues, if there are arguments or conflicts with payment of regular expenses, it is good to keep track of when those incidents occur. (i.e. On March 10th he removed money from the savings account without notifying me. On April 8th she refused to allow me to use our joint account to pay the mortgage.) As previously stated, you should be keeping your attorney aware of these problems as they are occurring to strategize on the best way to handle the issues, but if you have a log of events that log can be helpful to your attorney who is advocating on your behalf.

#7: Listening/Reading Legal Advice: In conjunction with Tip #1 above regarding reading and rereading correspondence that you receive from your attorney, it is important to acknowledge and understand that the advice your attorney provides to you is just that: advice. Your attorney works for you and is there to provide you with insight into the law and how your case could be resolved. The best way for you and your attorney to make strategic decisions about your case is for you to understand their explanations about the current law. When an attorney tells you what the law is and how it could affect your case, try to understand that the attorney did not make the law and may not even agree with how the law is applied. When explaining the law, the attorney is not making personal judgments about you, your marriage or your children, but advising you of your options under the current law. Accept that your attorney is looking out for your best interest and sometimes that means providing you with information that you may not want to hear. Just remember the attorney is there to guide you through this process and to be your advocate.

If you are looking for a matrimonial attorney to advise you on how to proceed with your divorce or post-judgment issues, contact us today to set up a consultation.

Originally published on October 22, 2020. 

By Michelle Barr | Our Family Wizard, AAML NJ Silver Sponsor

Protecting your children through a divorce may look a bit different for every family, but at its heart, it means that both parents are always looking out for their child's emotional and mental health. Children deserve the chance to just be kids without being worried about getting caught in the middle of their parents' conflict. OurFamilyWizard provides families with a lasting solution that can improve parent communication once and for all. Curtail trips back to court to resolve disputes and protect the best interests of children with tools that help parents reach peaceful agreements on their own. Below please find tips and insights on ways clients can improve communication and work as a team to protect their children during a divorce or separation.

Read the full article here.

By Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

As a full-blown crazy cat parent, it’s hard for me to believe that New Jersey courts consider our beloved pets (“fur babies,” if you will) as “chattel” or property.  Although New Jersey courts recognize that pets have a special subjective value, they are not bound to address custodial arrangements as they are in cases involving human children. However, New Jersey courts will honor an agreement between two parties with regards to actual ownership of or time-sharing with a formerly shared pet.

In Houseman v. Dare, the trial court initially found that pets are personal property that lack the unique value essential to an award of specific performance (in this case, actual ownership as opposed to the distribution of the property’s monetary value). Therefore, the trial court denied Plaintiff’s request to enforce an oral agreement between her and her former fiancé, Defendant, in which Plaintiff claimed Defendant had agreed to give her possession of the dog upon their separation.  Instead, the trial court awarded Plaintiff a total of $1,500 for the purchase price of the dog, but denied her request for specific performance of the oral agreement.  

In its review, the Appellate Division remanded the case back to the trial court. The Appellate Division rejected the trial court’s initial ruling that the parties’ oral agreement may not be specifically enforced by the court. In fact, the Appellate Division went to great lengths to liken pets to heirlooms, family treasures, or works of art – all tangible property that induce a strong sentimental attachment from their owners. The Appellate Division noted that money damages cannot compensate the injured party for the special subjective benefits derived from those possessions. Therefore, the request for specific performance as to ownership of a pet is appropriate and can certainly be addressed by the Family Part. The Appellate Division remanded the case back to the trial court and ordered that the trial court to conduct further proceedings on the existence of an oral agreement about ownership and possession of the dog and the propriety of specific performance as a remedy in the matter. After the case was remanded back to the trial court, the trial court reversed their initial decision and ordered that the parties alternate time with the dog every five (5) weeks. However, since custodial arrangements are still reserved solely for human children, the trial court could not award custody and, instead, awarded “alternating possession.”

Because custody is not awarded when it comes to our beloved pets, the courts are not bound by the custody statutes and case law as with human children. New Jersey courts have not caught up to courts in other states such as Alaska wherein pet custodial arrangements are now being treated more like those of human children including joint decision making, shared visitation time, and the consideration of the pet’s best interest. Therefore, the “best interests” of your pet are not part of the court’s analysis – the court will only consider the special subjective value held by the human parties.  So, how do you protect your rights to share your fur baby in the event of a separation or divorce?

Our number one tip is to formulate a written agreement with your partner.  This will ensure that your wishes are enforced by a New Jersey court.  Following the court’s holding in Houseman v. Dare, New Jersey courts will honor an agreement between two parties with regards to what happens with their pets upon separation.  However, absent an agreement, the courts will treat your beloved pet as though he or she were akin to a family heirloom – that means there is a possibility of shared possession, but same is not required.

If you and your partner adopted or purchased your pet prior to marriage, and you both decide you want to enter into a prenuptial agreement before marriage, including your pet in your prenuptial agreement is certainly a good idea.  In the event you did not execute a written agreement prior to entering into your marriage, you can certainly address who retains your pet in settlement discussions.

Originally published on January 19, 2021. Link here.

By Sharon L. Klein, Senior Vice President and Head of National Divorce Advisory Practice | Wilmington Trust, AAML NJ Silver Sponsor

Tax season is intimidating enough for clients without the added burden of navigating it through divorce. In this month’s Family Lawyer Magazine monthly tip, Sharon Klein shares what those maneuvering through divorce need to know before they file.

Link here to monthly tip.

For more information, reach out to Sharon L. Klein, Head of Wilmington Trust’s National Divorce Advisory Practice at 212-415-0531 or sklein@wilmingtontrust.com.

By Chris Beck | Soberlink, AAML NJ Bronze Sponsor

Nearly every day, matrimonial law practitioners work with people whose most intimate relationships have deteriorated to a point where parties’ emotions alternate from disappointment to anger and from sorrow to perhaps fear. This is acutely evident when clients have to navigate matters involving child custody and visitation issues – a course made that much more difficult when one parent struggles with alcohol abuse. 

One of the most difficult hurdles to overcome in any Family Law proceeding is reaching a parenting-time agreement when one of the parties has a history of misusing alcohol. Settling custodial and visitation issues is further complicated when one parent’s distrust of the other is fueled by their fear that alcohol misuse will endanger the child during unsupervised visits.  

Whether you represent the concerned party who is fearful for their child’s safety during a co-parent’s visitation or you represent the parent struggling with alcohol misuse, all hope – of your client experiencing peace of mind or regaining trust – is not lost. Despite what may appear to be the crux of an impasse during settlement negotiations or litigation, a mutually convenient and proven solution that offers streamlined litigation, peace of mind, and improved child safety is available – remote alcohol monitoring.

This article will discuss:

Ensuring the Child Maintains Continued Contact with Both Parents

As outlined by New Jersey law, it is crucial in custody and alcohol cases that children maintain a healthy relationship with both parents: 

“Declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing..." (N.J. Stat. § 9:2-4).

When alcohol abuse is introduced as an issue in a divorce or child custody dispute, the matter is investigated and not easily brushed aside. Family Court Judges, social workers, guardians-ad-litem, and psychologists involved in the case will focus on the alcohol abuse allegations as a genuine concern that will dominate the court’s assessment of what co-parenting arrangement is in the best interest of the child.

The traditional remedy for these situations was a requirement that visitation with a noncustodial parent be supervised. It was thought that only with the oversight of another adult can the child be assured of the visiting parent’s sobriety. However, arranging for a visit to be supervised has proven to cause significant stress on the child’s parents and court’s child welfare support apparatus.

Unless an agency official supervised the visitation, some families had no trusted family member to provide adequate supervision. Therefore, some visits would need to be canceled or rescheduled if the designated observer was unavailable. If a state employee or contracted therapist were assigned to provide visit supervision, the visits were necessarily short, infrequent, and often expensive.

Fortunately, Soberlink, a comprehensive real-time remote alcohol monitoring system, was designed for co-parenting agreements involving alcohol abuse. Providing court-admissible, documented proof of sobriety during parenting time, Soberlink is trusted by Family Law practitioners to promote child safety and help address concerns of alcohol misuse before or during visitation. Family Court Judges and domestic litigation parties across the country use Soberlink’s wireless alcohol testing devices to monitor alcohol abstinence, assuring the children’s continued contact with both parents.

Rebuilding Trust

If your client struggles with alcohol addiction or Alcohol Use Disorder (AUD), the social barriers and stigma attached to the chronic illness can be painfully difficult to overcome. Moreover, concerned parties, family members, opposing counsel, and court personnel may doubt or distrust your client’s alleged sobriety. Soberlink allows your client to demonstrate their abstinence from alcohol while maintaining a relationship with their children and offering peace of mind to loved ones.

As Soberlink supports accountability for sobriety, a client’s willingness to use a Soberlink remote breathalyzer can also be pivotal in helping clients accept responsibility for their actions and make changes in their child’s best interests. 

For parents committed to abstaining from alcohol and rebuilding trust with their co-parent, Soberlink offers two monitoring programs for improved co-parenting agreements. Level 1: Parenting Time Only is designed with flexibility in mind, offering monitoring only during parenting time with schedules managed between both parties. Alternately, Level 2: Daily Testing is consistent monitoring, seven days a week, with schedules managed by Soberlink. 

When trust has been broken, and child safety is in jeopardy, Soberlink is best utilized when a client begins their monitoring journey on Level 2, completely abstaining from alcohol use. Once a Level 2 client who is testing several times a day demonstrates consistent compliance, addiction professionals suggest stepping down to Level 1, where monitoring is only conducted during parenting time.

The Family Court and Legal Community’s New Best Evidence – Remote Alcohol Monitoring

Beyond providing court-admissible evidence and offering relief to concerned parties, Soberlink’s comprehensive alcohol monitoring system, which combines a professional-grade breathalyzer with wireless connectivity to send results in real-time, also incorporates tamper detection, adaptive facial recognition, and Advanced Reporting capabilities to ensure the integrity of each test. The system’s intuitive design has positioned Soberlink as the go-to solution for Family Law professionals looking to improve child safety and prove their client’s sobriety with the highest level of reliability and accuracy.

Before systems like Soberlink revolutionized divorce litigation, witness testimony, or hearsay, was traditionally the only evidence a Family Court Judge could rely on to find facts relating to a party’s history of alcohol use. Rulings issued in a case involving one party’s alleged misuse of alcohol were based on what evidence the judge deemed most credible.

The Family Court Judge no longer must rely on witness testimony or historical records of a party’s past behavior with alcohol. Soberlink provides reliable, real-time results at whatever time intervals the Court or the parties establish, and their Advanced Reporting feature allows courts to review a person’s test results at a glance.

Conclusion

Informed Family Court professionals in New Jersey, Family Law attorneys, and presiding judges may find it constructive to advise litigants of the benefits of Soberlink to eliminate any guesswork or conflicting reports about a parent’s alcohol misuse in an effort to uphold the best interests of a child.

By Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

It is certainly no secret that going through a divorce can be one of the most difficult periods in anyone’s life. Divorces can be emotionally-charged, expensive, and contentious. The family court system still encourages couples to work together, if they can, through divorce disputes. When spouses agree on more things than not, the process is more comfortable and smooth for everyone. It isn’t uncommon for spouses to find help through a mediator or neutral third person who can facilitate a conversation. 

If you can tolerate your spouse enough and are willing to work with them, you may want to consider the benefits of a collaborative divorce.

About Collaborative Divorce

Collaborative divorce is a legal process that enables couples to negotiate the terms of their divorce, without having to fight intensely in court. Couples can use various negotiation and mediation tactics to reach a solution they are both somewhat happy with. Of course, there will be times when a spouse may have to compromise more than they’d like, but at least it guarantees some of their preferences will be considered. As compared to family court, where the judge will ultimately have the final say. Examples of topics the couple will have to discuss include:

Is It Best For Your Divorce?

Not all divorces will benefit from a collaborative divorce, simply because some spouses are just not able to cooperate together. Spouses who are less contentious with one another may want to think about a collaborative divorce, which is often less stress and money overall. 

To learn more about whether a collaborative divorce is right for you, contact a reputable collaborative divorce family law firm, such as The McKinney Law Group. 

Originally published on April 20, 2021.

By Sharon L. Klein, Senior Vice President and Head of National Divorce Advisory Practice | Wilmington Trust, AAML NJ Silver Sponsor

Are your clients’ assets protected from a future potential divorce? In her article just published by WealthCounsel, Sharon Klein outlines the five key components to a well-crafted plan and illustrates how a multi-pronged strategy is often the most powerful approach.

Link to the article: Divorce & Asset Protection

For more information, reach out to Sharon L. Klein, Head of Wilmington Trust’s National Divorce Advisory Practice at 212-415-0531 or sklein@wilmingtontrust.com.

By Soberlink, AAML NJ Bronze Sponsor

Perhaps the most emotionally charged area law is the area of matrimonial and family law. Besides the parties confronting the breakup of what once was a romantically inspired partnership, there are often the issues of the equitable distribution of accumulated assets, alimony (also known as spousal support), child support, childcare, custody, and visitation.

The entire family relationship is in play, and it is not always hyperbole to state it is sometimes under attack by the parties, with the attorneys as the designated fighters in the courtroom ring and the judge as (hopefully) an impartial referee.

While the attorney is presumably licensed and experienced in dealing with domestic legal issues, they are often called upon to play the part of de facto therapist in order to understand the emotional drives of the client and how they can impact not only their expectations of the outcome but the reasonability of the positions they wish to take in light of statutory law and current case holdings.

There are times that a client will openly admit that they wish to use financial and custody/visitation issues as a hammer to punish the other spouse. There are also times where the client is not consciously aware that that is what they are doing.

It is the family law attorney who must be cognizant of these emotional issues, to acknowledge them, to explain to the client that the best possible outcomes legally are those where the parties act both reasonably and responsibly in trying to achieve the best possible outcome in accordance with the rules and precedents to which they will be subject.

The attorney is the client’s guide and protector, but, among the list of New Jersey Client Rights: 

Clients have the right to make the final decision as to whether, when, and how to settle their cases and as to economic and other positions to be taken with respect to issues in the case.

The experienced practitioner knows that sometimes they have to protect themselves by detailing their advice and instructions in writing to a client, having the client acknowledge the receipt of this advice and instructions, maintaining the decision to ignore or deviate from them.

Equally important are the client’s responsibilities: 

Clients shall not take any position in their matter for any improper purpose, such as to delay the proceeding or intentionally to increase the cost to other litigants.

Alcohol Misuse and the Attorney/Client Relationship

When alcohol misuse is involved by either one or both parties, issues can become more difficult to resolve. The attorney must have the experience and the ability to liaison with the requisite addiction professionals and be aware of the tools at their disposal to do justice for both parties, especially keeping in line with the best interests of the child principle.

Alcohol Use Disorder is often weaponized in court, causing a decided conflict between the attorney and opposing counsel. In this instance, family law practitioners should educate clients on systems available to them that can help to empower both parents while maintaining child safety. 

Helping Your Client by Ensuring Their Child's Safety in Cases Involving Alcohol Abuse

As it states in New Jersey Children Juvenile and Domestic Relations Courts section 9-2-4(c) regarding the fitness of parents with respect to custodial and visitation awards: 

A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.

Unfortunately, over 10% of children live with a parent that misuses alcohol.  

In custody and alcohol litigation, many times, a parent will falsely accuse the other parent of substance misuse, and that is where technology can play a major part in proving the contrary and making it more likely that the accused party will be vindicated, resulting in a positive impact for them in a custody or visitation dispute.     

As co-parenting often requires a great deal of trust, the attorney representing the party either struggling or accused of alcohol misuse should discuss what technology is available to them to prove their sobriety during parenting time, providing peace of mind to opposing counsel. 

A convenient and discreet option is Soberlink, a comprehensive remote alcohol monitoring system that sends real-time results and helps parents improve accountability. 

Soberlink consists of a wireless remote breathalyzer that uses facial recognition and tamper detection to ensure the integrity of each test. In addition, its Advanced Reporting capabilities provide simplified analysis of test results and court-admissible reports for streamlined litigation. Soberlink is widely trusted by thousands of family law practitioners across the United States, including in the State of New Jersey.

Soberlink’s unique design allows for swift intervention for improved child safety in co-parenting arrangements and, in many cases, helps make visitations possible—especially unsupervised visitation. 

Further, Soberlink can be a tool for managing recovery from alcohol abuse. The system is not just a tool of strategy and tactics in a court proceeding; it offers a way for parents to maintain sobriety so that they can improve their lives and the lives of their children, offering them a safe and stable home environment.

The family lawyer’s role is much more multifaceted than it used to be with respect to establishing client expectations and accomplishing client goals. Today, the family law attorney is the legal advisor, the agent for therapeutic liaison, and the technology-savvy counselor.

By Kriste J. Rodriguez, CPA/ABV | EisnerAmper, AAML NJ Gold Sponsor

Overview of the Marital Balance Sheet

One of the tasks as a forensic accountant is to prepare a marital balance sheet to help facilitate the division of the marital assets/liabilities. The assets and liabilities of the marital balance sheet may include, but are not limited to:

• Real estate
• Bank accounts
• Automobiles, boats, etc.
• Tangible property, including artwork, furniture, jewelry, collectible items, wine, etc.
• Brokerage accounts including stocks, bonds and securities
• Retirement accounts, including pensions, IRAs, profit sharing plans, 401(k)s, etc.
• Value of a business interest
• Employee benefits, such as restricted stock, stock options, etc.
• Cash surrender value of life insurance policies
• Liabilities include mortgages, lines of credit, notes payable personal loans and credit card liabilities

The value of certain assets listed above, such as real estate, pensions, jewelry, and wine collections, are determined by appraisers that specialize in these areas. Kelly Blue Book or similar services are often used to determine the value for automobiles, boats, etc. Account statements are reviewed by the forensic accountant to determine the value of assets, such as bank, brokerage and retirement accounts. Forensic accountants are tasked with determining the value of an interest in businesses to help attorneys determine the parties share of the business value for equitable distribution.

Failure to Consider Tax Implications Could Result in Inequitable Division of Assets

Certain assets may appear to be equal in value on the surface. However, certain events could trigger tax consequences, which could result in very different values.  

Take, for example, the marital residence. There is no issue if the parties agree to sell the marital home and split the proceeds.  However, if one of the parties remains in the house and subsequently sells the home, the tax consequences, specifically capital gains tax (if any), could impact the value to that person after it is sold.

The assets in a brokerage account portfolio may not really be equal in value. A brokerage account with cash of $100,000 does not have the same value as a brokerage account with $100,000 of stock on an after-tax basis. Once the tax implications are considered on stock when it is sold, the values become very different. The gain on the sale of stock is the difference between the cost basis and the sale price. This gain will be either subject to long-term or short-term capital gains, resulting in an after-tax value less than $100,000. Similarly, if the parties have two brokerage accounts each with $100,000 of stock in the portfolio, the cost basis for each of those accounts could be very different, resulting in more or less taxes. The tax consequences should be considered so that the asset is equitably distributed.

Retirement Account Division – Understanding the Rules

The division of retirement assets, such as 401(k)s should be carefully considered. Not only are tax implications involved, but specific rules also apply to the transfer of certain retirement assets. Failure to comply with these rules could result in unintended consequences. For example, if one party is entitled to a portion of a 401(k)the money should not be withdrawn and transferred to the other party without executing the proper paperwork. Failure to do so could result in early withdrawal penalties and incomer tax consequences. A document known as a qualified domestic relations order or QDRO should be drafted, which specifies how the spouse will receive their portion of the 401(k) without triggering any income tax or early withdrawal penalties. Eligible withdrawals from a 401(k) will be taxed at ordinary income tax rates and should also be considered when dividing this asset during settlement. The use of a forensic accountant with income tax experience can help you avoid the pitfall that can be encountered with 401(k) distributions. 

Liquidity of Assets

The liquidity of an asset or the ability to turn the asset into cash is very important to consider when dividing up the marital estate. Cash in a savings or checking account is the most liquid asset. However, assets such as homes, wine collections and/or art collections are less liquid because it takes time to sell this type of asset. It is not practical for one spouse to receive mostly liquid assets and the other to receive primarily illiquid assets.  Significant cash flow problems could result for the person receiving the mostly illiquid asset portfolio. One of the parties may keep the marital residence, in exchange for fewer liquid assets. It is imperative, specifically when there is a lack of liquid assets to be received in settlement, that a proper budget is considered to cover the expense of maintaining the home and other lifestyle expenses.

Life Insurance Policies 

It is common in marital settlement agreements (MSA) for one of the parties to maintain a life insurance policy to cover their alimony and/or child support obligation should that party become deceased before their support obligation is over. The spouse that the insurance is obtained for should either be the owner or irrevocable beneficiary. This will ensure that the beneficiary will be notified if the premiums are not being paid or if there are any other issues with the policy. Failure to control the policy could result in a lapse or cancellation of the policy. As an alternative, the spouse that is maintaining the policy should provide proof of the policies on an agreed-upon time frame, whether quarterly, semi-annually or annually.

Conclusion

Any one of these common areas discussed above in a marital settlement agreement could cause significant financial loss and/or future financial distress if not addressed properly at settlement. Therefore, it is imperative to analyze the assets and consider all financial/tax consequences that each asset may have so that the division of the marital estate is fair and equitable.  

By Christina Vinters, J.D., Family Law Mediator, “ex” Divorce Lawyer, and Author of Pathways to Amicable Divorce: Directions for the Beginning of Separation | Our Family Wizard, AAML NJ Silver Sponsor

Looking for relatable marriage separation advice that doesn't leave you feeling overwhelmed? And wondering what should you not do during separation? Most people have heard horror stories about married couples turning on one another during divorce and would like to avoid that. An adversarial divorce could involve massive legal expenses, high levels of stress, and prolonged conflict which ends up harming the children.

The good news is that there are ways of managing separation that will help your family make the transition during divorce from one household to two without destroying the functionality of your partnership as parents and your respective savings.

Some of the steps you will need to take to get started on a healthy marriage separation may seem counter-intuitive to you. However, there are specific strategic advantages for each one. Keep in mind that de-escalation of conflict needs to be an ongoing priority. Keep reading for our conflict-free marriage separation advice.

1. Treat Your Co-Parent as you Would Treat a Business Partner

These are the basics of any decent relationship but are frequently overlooked or disregarded during separation. When you get separated you need to start a new relationship paradigm – that of business partners:

You will have to continue to work together on the resolution of all of the issues arising out of the breakdown of your relationship, and if you have children, you will have to continue to work together and co-exist as parents of shared children for years to come (including attending birthday parties, graduations, weddings, and so forth). 

It can be helpful to consider how you’d like to see your relationship years down the road – for example, you probably don’t want your children to have to worry about how to plan a wedding with both of you in attendance. Don’t do anything now in the heat of the moment that will create tension and unpleasantness for years to come.

Separation can be an overwhelming time of intense mixed emotions, including sadness, guilt, denial, relief, anger, and fear, to name only a few. 

Although it can be tempting in a moment of disagreement to let your anger flow, it's better in the long-term for your family if you take a deep breath and maintain your patience. 

Sorting out the details of a legal separation usually takes longer than people hope and expect. Give both you and your partner time to understand the shifting needs of your family as you move from being a one-household family to a two-household family. 

Handling your emotions in a constructive and respectful way is an important component of moving ahead on the path towards an amicable divorce.

2. Don’t Make any Significant Changes

If you have been paying for all of the family bills, continue to pay all of the bills until you and your partner have reached an agreement on how expenses will be handled going forward. 

Neither of you should withdraw or spend significant sums of money without the consent of the other – in most cases, this is not the time to buy a new vehicle or take a trip to Las Vegas! 

Some people find comfort in making arrangements with their financial institution to require both of their signatures for withdrawals from savings and investment accounts until they have divided their accounts.

If there is no safety concern, do not move out with the children. The children are entitled to a stable environment and shouldn’t be moved around more than necessary. 

Wait to move until you have worked out a parenting plan. However, safety is the first priority and you should obtain legal advice immediately if you believe that you need assistance with moving yourself and your children to a safe location.

3. Discuss the Various Options for Pathways to an Amicable Divorce

A little individual reading and research can be helpful before discussing your dispute resolution options. Familiarize yourself with mediation, mediation/ arbitration, and collaborative law, and then discuss the options so that you are on the same page in terms of pros and cons. 

Discuss which option seems appropriate given the level of complexity of your issues and the state of your ability to communicate with each other at the present time.

You may find that one person has no particular preference while the other person is drawn to a certain process option. It may or may not be difficult initially to agree on a process. 

Take the path of least resistance and choose a process that you could each “live with” as a test run. You can then work on choosing the appropriate professional(s). The processes are voluntary so either of you could choose to end the initial process if you feel that it is not working well for you.

4. Choose Your Family Mediator and/or Lawyer

Regardless of which dispute resolution process you choose and even if you don’t hire a lawyer to represent you throughout the process, you should get independent legal advice from a family law lawyer at some point in the process, whether it is at the beginning, partway through negotiations, and/or before signing the draft Separation Agreement.

Ask for a Referral

Ask around for recommendations. Ask your friends, neighbors, co-workers, and family members for feedback regarding specific family law lawyers.

You should find out what they liked about certain lawyers and what they didn’t like – this is important because it may be that the other person’s goals were quite different from yours and that the recommendation would be poorly suited to your situation.

Consider Personality

Don’t forget that lawyers are not one uniform kind of person, even within a certain area of law – some are peacemakers at heart while others enjoy the thrill of debate and banter; some are diplomatic and some take pride in their reputation for being a bulldog; some are more focused on the big picture of reaching overall resolution while others are focused on advocating for a win on every legal issue.

Some might say that these are all strategies that can be employed by any lawyer depending on the situation, rather than being characteristics. Regardless, in my opinion, it is the rare individual who does an excellent job with both styles of dispute resolution.

An amicable problem-solver and a tenacious litigator have very different skill sets, experiences, outlooks, and instincts. Most lawyers will have a dominant strength in one or the other style. Lawyers who also do a lot of work as mediators will often have a more resolution-oriented style.

There is no right and wrong in terms of style and each style has merits in certain circumstances. The key is to choose the right style to help you reach your goals in your circumstances.

If you and your partner are both reasonable people who disagree about some issues, you will probably benefit from a mediator or lawyer who will work towards a resolution with you without involving court processes.

In this case, you will do well to research the professionals in your area who are trained in mediation or collaborative law.

Consider Your Personal Scenario

If you are in a relationship with someone who is a bully, an abuser, and/or has a serious personality disorder, mental health issue, or substance use problem that prevents him or her from engaging in rational discussion, you may do better with a family law litigator who takes an aggressive court-based approach.

Trust Your Gut

Lastly, given that we’re human, there’s no getting around that some professionals are more knowledgeable, better organized, more emotionally intelligent, and/or better communicators than others, attributes that don’t necessarily have anything to do with a person’s years of experience or hourly rate. Try to find out about these types of characteristics as well.

Make your choice based on a trusted recommendation and some of your own research.

5. See a Counselor and/or Doctor

Separation can be devastating for families, whether or not there are children involved. There are many issues that arise with which a lawyer can’t help because they are not legal issues. 

Our society has become overly focused on the law with respect to the breakdown of a family but the law is not equipped to provide all of the assistance that most families need. 

Mental Health is Just as Important as Legal Counsel

Serious emotional issues can arise for the separating couple and for the children, during the deterioration of the relationship and upon separation. These issues will not resolve themselves.

There are many different approaches to counseling so research the options to decide which will work best for you and your family. Many people don’t want to be involved in the stereotype of counseling: flaky discussions reflecting back on their childhood. 

There are now future-focused, pragmatic, behavior-based methods that can help with specifics, for example, appropriate communication for co-parenting or handling feelings when the other person re-partners.

Unresolved emotional issues very frequently interfere with the resolution of legal issues. It can lead to one or both people causing long delays by refusing to engage in discussion. 

Parties may get stuck on a particular issue, and/or create conflict in situations that should objectively be fairly uncomplicated.

In addition, even if you and your partner are doing your best in good faith to move towards an agreement, it may be that you experience a significant amount of stress and anxiety during the process due to the many unknowns in your future. 

Gathering and exchanging the necessary documentation and negotiating the terms of an agreement can take longer than people hope and expect. Unfortunately, when you are working towards an agreement, you need to move at the pace of the slower person. 

Be Patient Even When it's Difficult

One person will always be further ahead than the other in the grief cycle relating to the breakdown of the relationship and therefore will have to wait for the other person to become mentally ready to finalize the details of the separation by agreement. 

The very nature of an agreement is that you need the other person to agree with you, which cannot be forced. If you are the person who is ready to move on and waiting for the other person to come around, you may need to deal with your anxiety with the help of a counselor or medical professional. There’s no remedy in law for anxiety.

Provide Emotional Support and Resources for Your Children

If you have children, there is no question that your children have been affected by your separation. They may seem fine. They may be acting out. Either way, allow them to express their emotions and get some professional assistance with the best way to help your children move forward.

6. Wait to Start a New Relationship

This suggestion is not based on moral considerations; it is a strategic issue. More often than not, a new boyfriend or girlfriend on the scene is massively disruptive to the negotiation process underway for the Separation Agreement.

Regardless of which person ended the relationship, a new relationship can cause surprisingly intense emotions for the “replaced” partner. This often translates into complications such as some manner of a financial backlash, parenting altercations, and general escalation of disagreements.

Depending on the nature of a new relationship, it can have bearing on whether and how much spousal support may be payable. 

The new partner may also become a factor in the parenting arrangements for the children (for example, the new partner will be under scrutiny to determine whether his or her presence around the children is in their best interests).

If you can manage to wait to start a new relationship until your Separation Agreement has been finalized, you will avoid one possible hot button issue that commonly derails originally amicable discussions.

7. Start Your Dispute Resolution Process Sooner Rather Than Later

I have found that the longer uncertainty continues, the more likely it is that communication will deteriorate and tension will escalate. Change is difficult for most people and particularly so when they are not in full control of the outcome. 

You can reduce the fear and anxiety that arise for most people during separation by dealing with your issues promptly. 

Don’t encourage your partner’s imagination to wander into worst-case scenarios by dragging your heels on starting the resolution process. 

Conflict-Free Separation is Possible

The separation will be challenging, but if you follow most of these 7 tips, you will give yourself the best chance of achieving a healthy and efficient resolution. It will be hard work and it will likely take all of your willpower but your future self will thank you for your effort.