Collaborative: Mindful Divorce

There’s a lot of talk about mindfulness lately….focusing on being in the moment, being fully present without being overly reactive or overwhelmed. Add awareness and non-judgmental to the list. We can take a class in mindfulness, do the exercises and help develop greater inner peace. Harder to imagine is mindfulness going through divorce…a life altering experience, the angst, the pain…but… there is a way, collaborative divorce.

Unlike traditional divorce, with two attorneys often strategizing to get the best deal (which can cause considerable strife between partners/spouses) , the collaborative method consists of a team (trained in mediation and the collaborative process), dedicated to making your divorce respectful and out of court. The attorneys work cooperatively, while still protecting their client. All work together to come up with a plan that serves both parties and children in a non-judgmental yet purposeful atmosphere.

In addition to the attorneys are licensed mental health professionals who help maintain the emotional temperature in the room. It is not therapy, but a supportive way to know what you want and need, going forward, without emotionally damaging either partner/spouse. The collaborative facilitator is there if you or your partner/spouse get ‘overheated’ and need to take a break. They offer assistance and guidance to calm partners/spouses and to more effectively present their thoughts and needs.   The facilitator can help inform the attorneys on the best way to proceed, considering the personalities and situation.

The collaborative child specialist informs parents, after briefly meeting with the children, of their concerns to better tailor the Parenting Plan to meet the specific needs of their family. They are trained to understand children of all ages and make them feel comfortable and safe as their parents navigate through the divorce process. The result is a more cooperative co-parenting team to continue as a family, but in two homes. Children learn, via parents, that coming apart does not need to tear people apart.

When appropriate, a collaborative financial expert joins the team to help couples divide their assets and establish a realistic budget that will work for both. These experts are not only skilled in dealing with figures but also dealing with the stress people experience and helping them toward a more relaxed way to ‘divide the pie’.

In collaborative divorce, you do not go to the court, in itself a stressful environment. No, you are settled in a lawyer’s quiet consultation room, with conscientious seating so all are equal and comfortable. You are assisted in focusing on what is important to you and to state that in a manner that expresses your needs without offending or distancing your partner/spouse. None of us can change the past. Team members help couples stay in the present which is the best way to plan for the future. They do not overemphasize the negative but pay attention to the positive. In a non-judgmental manner, collaborative professionals help couples pay attention to what is essential to them. Each couple and family is unique. Collaborative professionals celebrate that and the concept that when mindfulness prevails during divorce, all family members can grow and move past division and create addition in their lives.

 

By:Sharon Klempner, MSW, LCSW, BCD

Division of Retirement Plans and Assets

Judith Deer, Esq. delivered a spirited talk to 15 members of the Collaborative Divorce Association of North Jersey at its recent brown-bag lunch on April 3, 2019. The presentation included all aspects of division of retirement plans as part of the divorce process. Ms. Deer is the president of All-Pro QDRO, an organization dedicated to assisting law firms in negotiating and drafting a Qualified Domestic Relations Order (“QDRO”).

Various types of retirement plans were reviewed. Ms Deer discussed in detail the difference between Defined Contribution Plans (such as a 401(k) or savings plans) and Defined

Benefit Plans (such as traditional pension plans). The various mechanisms of division of Defined Benefit Plans were addressed including the martial coverture approach (Marx Formula) and the immediate offset approach.

A most informative part of the talk included division of a 401(k) pre-judgment, without any early withdrawal penalty. By the use of a QDRO, qualified payees which are limited to a spouse, former spouse or a dependent can utilize a QDRO pre-judgment for certain purposes including payment of legal fees. In these instances the alternate payee satisfies any taxes which might be due.

Ms. Deer reviewed the four things which should be included in the Property Settlement Agreement, to then be incorporated into the QDRO. These include the following:

  • 1.Qualified Pre-Retirement Survivor Annuity so the alternate payee receives the funds even if the participant dies before the plan goes into effect.
  • 2. Marx Formula (martial coverture fraction).
  • 3. Cost of living increases.
  • 4. Early retirement subsidy.

Ms. Deer pointed out that if these items are negotiated between the parties, which unfortunately is often not the case, it can avoid problems later on when preparing the QDRO. If the early retirement subsidy, for example, is not included in the Property Settlement Agreement, it can result in litigation at a later point.

Ms. Deer also discussed New Jersey state plans as opposed to Federal plans; public plans as opposed to private plans; and provided a general overview of TIAA-CREF. The mechanism by which various plans set up separate interest accounts for the alternate payee was also reviewed. Ms. Deer pointed out that once an election has been made for the creation of the separate interest account, such elections are irrevocable.

We were also treated to a discussion of the unique Police Fire Retirement Pension which is the only plan in New Jersey that does not allow for survivor benefits. Ms. Deer recommended that if a PFRS plan is involved, the best approach is to value the pension so that the alternate payee can be bought out or if necessary life insurance can be purchased to avoid the problem of the participant dying before the alternate payee.

Judy had an audience which was quite interested in the presentation. She endured questions which went on well past the usual ending time. An enjoyable and educational experience was had by all.

By: Daniel Hoberman, Esq.

 

Seven Common Life and Disability Insurance Mistakes in Divorce

No one wants to think about their own demise, so life insurance is often a chore that we procrastinate doing or rush into without much thought just get it done. However, when used as a tool to secure a former spouse’s alimony obligations after his or her death, we want our collaborative professionals to know the ins and outs to protect us. Members of CDANJ recently participated in an eye opening discussion highlighting the 7 common life and disability insurance mistakes made by attorneys in negotiating divorce settlements.

Host, Scott Schroeder of Alimony Protection Group LLC, discussed the perils of:

1. Not independently verifying the status of existing Life and disability insurance policies;
2. Not determining if the supporting spouse is able to qualify for new Life and disability insurance coverage if needed;
3. Not determining the proper amount of Life and disability insurance coverage to secure the alimony and support payment obligations;
4. Not obtaining the correct type of Life and disability insurance policies to secure the alimony and support payment obligations;
5. Not implementing the proper ownership structure of the Life and disability insurance policies to maximize tax benefits and protect beneficiaries.
6. Not changing the beneficiary designations on existing Life and disability insurance policies after the divorce is finalized;
7. Not providing the supported spouse with ongoing access to relevant Life and disability policy information.

Scott then shared his expertise in how to avoid these mistakes so as to provide a higher degree of comfort and security to collaborative clients. Scott’s focus was to shift the life insurance discussion from a last minute detail to a regular part of our collaborative discussions. Knowing what insurance a family has and what is needed after a divorce can be eye opening. Scott helped our professionals recognize a common problem in divorce negotiation and reframe the issue moving forward. The more knowledge and tools our collaborative professionals have to find peaceful resolutions to family conflict, the more readily they can assist in creating settlements that protect families.

Parenting Post Divorce

Whether you are considering divorce or in the process, you need to think about how you and your partner/spouse will both parent your children. Unless your partner is unavailable or totally incapacitated, for any reason, you are in it together. There are choices to be made.

Decide between you so no one else gets to mandate your parenting role, the most important job in your life.

  • Do you have similar parenting philosophies and styles?
  • Can you both work through different opinions?
  • Is there flexibility for the children’s benefit?
  • Is your communication reasonably good?
  • Do you trust each other’s parenting?
  • Can you both put the children before your own feelings?

 

If you can answer affirmatively on the above, than you are ready for cooperative coc-parenting. It is the best way for your children to flourish. They learn that, although you do not want to be with each other any more, you are able to work together for their sake. You will be good role models and add to your children’s sense of security and well-being.

  • Do you both have very different parenting styles?
  • Do you feel very strongly that you are usually right?
  • Is it hard to communicate without arguing, name-calling, etc?
  • Are the children ‘stuck’ between parents?
  • Are stalemates your norm with each other?
  • You both want to have relationship with your children.

If your answers are ‘yes’ to the above, than cooperative co-parenting is not going to work for you at this time [though, hopefully, that would change]. Parallel parenting is recommended in such situations. When there is high conflict, parental contact needs to be minimized. Your Parenting Plan would be more detailed so all (you and the children) know what to expect…a rigid schedule, no last minute changes and no direct parental contact. Communication needs to be through texting, e-mail or notes, with just the facts, no emotion. Think of it as a business message. You all lose flexibility but gain peace of mind if parental contact is discordant.

If cooperative co-parenting is your choice, congratulate yourselves and keep it going!

If you are not able to co-parent in a cooperative manner, please make it a goal!

Sharon Klempner, MSW, LCSW, BCD

NJCCPG Takes Seattle 2018 Forum

NJCCPG-Seattle

 

 

 

 

 

 

The New Jersey Council of Collaborative Practice Group members attended the 2018 Seattle Forum of the International Academy of Collaborative Professionals. We spent the weekend learning and sharing and exchanging ideas with the global community. We received amazing collaborative training and participated in the inaugural global pin exchange. Lots of professionals were seeking out our NJ pins so next year we need to bring even more!

2018 Seattle annual IACP Forum

Collaborative Divorce Association of North Jersey had three members attend the 2018 Seattle annual IACP Forum this past October.

IACP Forum 2018

Left to right:
Marcia Werner, Shireen Meistrich, and Mitchell Arons.
There was lots of in depth learning and collaborative training available all weekend long. The full group will also meet on Wednesday November 7th to share the learning and wonderful training with our larger collaborative CDANJ community.
We are already planning for the 2019 Forum in Chicago!

Advanced learning and networking with fellow NJ practitioners

Collaborative Divorce Association of North Jersey members spend the day on May 3rd training at the New Jersey Council of Collaborative Practice Groups annual event with Ron Ousky. Great day of advanced learning and networking with fellow NJ practitioners!

collaborative divorce training

Bottom left: Adam Berner, Marcia Werner, Amelia Nickols, Toby Friedman
Top Left: Sharon Clancy, Melissa Donahue, Sharon Klempner, Larry Esposito, Dan Hoberman, Shireen Meistrich and speaker Ron Ousky

Learning About Your Options Through The Ending Of A Hollywood Marriage

(Photo by Brent N. Clarke/FilmMagic)

In 2002, a very funny movie came out. My Big Fat Greek Wedding is the story of a Greek woman who falls in love with a non-Greek man. Hilarity ensues as they plan their wedding and meld their families and cultures. Actress Nia Vardalos wrote, produced and starred in the film which is loosely based on the real life events surrounding her marriage to Ian Gomez; who played the best man in the film.

Vardalos and Gomez recently announced they are divorcing after nearly 25 years of marriage. Unfortunately, divorce is common these days. What is uncommon is the way they have seemingly chosen to divorce. In addition to the dignity and grace they are showing in their public communication of their decision, papers filed by Vardalos and responded to by Gomez indicate they requested that spousal support be determined in mediation. Timing is important because the IRS will not allow spousal support to be deducted for tax savings in divorces finalized after 2018.

What does mediation mean? How does it work? And why would they choose that path? Can you do that too?

Maybe! Make no mistake, you and your soon-to-be ex-spouse are actively engaged in a lawsuit. The dissolution of your marriage is a legal event ending your marriage contract. But, you and your spouse have more direct control than you may realize over the cost and time involved when getting divorced. There are three primary divorce processes couples can select from: mediation, collaborative or traditional litigation. Each path is unique and though you will end up at the same place – divorced – how you get there varies widely. This chart gives you an overview:

Divorce: The Leaver and the Left

For the majority of couples who come apart or divorce, to say it is a ‘trying time’ is to put it mildly. There is a loss of the hopes and dreams that most of us have when we embark on such unions, compounded by the reality that has evolved.

 

When one partner/spouse is convinced that their relationship is no longer viable and needs to be out of it, the partner/spouse doesn’t have a choice. What’s important, for both, is to realize that they are not in sync with their thoughts and feelings. Each person needs to understand the other in order to be able to part in a respectful manner, particularly when there are children involved.

 

The ‘leaver’ has made the decision that it is necessary to come apart, most often after experiencing sadness, anger, hopelessness, etc. about their situation. Most people don’t elect to take such steps lightly or quickly. They mentally slog through the disagreements, disappointments, and considerable differences between them. Both adults go through the five stages akin to having and accepting a terminal illness:

 

  1. Denial…feeling this can’t be happening to us, it’s unreal.
  2. Depression…any changes in eating, sleeping, energy level.
  3. Anger…impatience and resentment of their partner and why can’t they change?
  4. Negotiation…acknowledging the need for change and how to achieve it.
  5. Acceptance…we will be coming apart.

 

The leaver needs to realize is that their partner, who may not feel the same way about their relationship [or may, but not conclude that coming apart is the best or only solution] has time to adjust and will need to go through the same stages. The stages are generally experienced in the order listed above although people often shift back and forward, particularly in the beginning phases. It helps when the leaver understands his/her partner/spouse’s need for going through that process and presents his/her wishes gently, clearly stating the reasons for the decision and then being patient for his/her partner to catch up or, at least, be accepting to come apart.  Doing this can facilitate a somewhat less emotional and more civil dissolution of the relationship or marriage, which is important to the couple and how they each move on but even so much more essential when there are children.

 

The person who doesn’t want to end the relationship, for a multitude of possible reasons, is thrust into the first phase listed above. “This can’t be happening!” “I knew we had problems but…not this!” “How can you do this to me (and the children)?” That partner/spouse usually experiences deep sadness once the reality settles in. Everyone’s coping mechanisms vary in how this and all of the phases present. Once anger is boils up in the left partner/spouse, he/she frequently resents that their partner/spouse is doing so well and this is “easy for them”, not realizing that the leaver has, most often, suffered through the same feelings before and is just ahead of them. If that can be sincerely explained it can ameliorate a negative reaction. When there isn’t counter blaming or accusations, there can be a less traumatic coming to terms with the situation and negotiating. Then, acceptance can progress.

 

When in a relationship, it is always beneficial to mentally step into the other person’s shoes to imagine how they think and feel rather than getting stuck in our own perspective of things. When a relationship not working or the relationship is ending, it’s even more vital.

 

by Sharon Klempner, MSW, LCSW, BCD

TAKING CONTROL OVER YOUR DIVORCE

TAKING CONTROL OVER YOUR DIVORCE
Jennifer Bretz, Esq.


“You may not control all the events that happen to you, but you can decide not to be reduced by them.”
― Maya Angelou


Your divorce is just that: your divorce. It doesn’t define you and you should not be defined by it. You may have chosen it or it may have been your spouse’s choice. Regardless of how you have come to be in the divorce process, or what stage you are in, you can choose to take control. You should consider a process to get through this chapter of your life that does not destroy your relationships, your family, your confidence or you.

The familiar, traditional litigation process, managed by the impersonal and possibly overwhelming judicial system doesn’t necessarily work for everyone. No matter how excellent the judges are in your particular jurisdiction, or how fabulous your attorney is, once you file or are served a complaint for divorce, you are bound by the metaphorical handcuffs of the process. You are told what documents you need to file with the court, when to appear, how your case will be managed and are often told, Athe court wants {fill in appropriate demand here}.” If you do not comply in a reasonable manner, then you run the risk of being in violation of an order or contempt of court.


Divorce litigation attempts to create a strict and orderly process out of a naturally chaotic, life-altering event. There is a voluminous book of court rules, found on every attorney=s desk, with hundreds of pages and precise intricacies that set deadlines, page limits and procedures. Every case that enters the system is unique, but in litigation, the same rules apply to all.

Depending on where you live, your judge could see multiple cases a day. Even if there are just 10 cases per day before a judge and there are 5 judges in the family court. That=s 50 cases a day, 250 cases a week, maybe 700 cases a month and possibly 5,000 a year (accounting for dropped cases, settled cases, cases that come for multiple days). How much can a judge determining the outcome of your case — your entire life — actually know about you? How much could they know about your family, your children, your needs and desires? Of course, you have every fair opportunity to tell the judge, in the form of a written submission called a legal brief. Again, multiply that out with the number of cases (and double it, because each side had their own theory of the case) and the amount of pages a judge has to read is astronomical. The harsh reality is that in the judicial process, you are a name on the docket. You may have 15-30 minutes with the judge at a court appearance, so is virtually impossible for him or her to give you the attention your case demands and deserves. Further adding to the stress and expense of litigation is that may take a year or more to finally have your case heard by a judge and your trial “day in court.”

Judges are people, they want to perform well, even excel, at their job. Most have good intentions and want to give you and your family the fairest decision that they possibly can. However, mentally, physically and emotionally, due to the volume of divorce in this country, it is not realistic to expect a judge to Aget it right@ every time. It is the function of the court to dispense a fair and neutral ruling for the outcome of your case. But, everyone has his or her own notion of what is fair – and, if you don=t like the decision of a family judge at the trial level, you always have the sacrosanct right to an appeal.

Appeals are time consuming and costly. Moreover, very few divorce cases are overturned on appeal. There is a general notion in the law that a trial court that actually sees the evidence and hears the testimony is a better judge of credibility, character and overall general impressions of the parties. Unless there is a glaring error in law, there will not be a reversal. The facts are as the trial court judge determines because he or she is the ultimate decider of fact and has the utmost discretion on which party in the “he said/she said” battle is more credible. Thus, the very nature of divorce litigation should be a breeding ground for settlement.


Collaborative law is a different way to transition families in divorce. It is a way for you to take control over your life and future. In a collaborative divorce, the process is controlled by the parties with the guidance of a team of professionals hand-picked to help navigate the divorce. There is no “cookie-cutter” mechanism: you and your spouse are guided to resolve conflict in a non-adversarial manner and encouraged to generate creative solutions through out of the box thinking.

In a collaborative divorce, your attorney is your advocate, not a litigator. In fact, at the beginning of each collaborative case, the parties and attorneys sign a participation agreement, specifically agreeing that in the event the collaborative process breaks down and litigation commences, the attorneys will withdraw from the case. This is a strong motivator, for both the attorneys and the parties to work cooperatively towards successful completion. Once the participation agreement is executed, the parties jointly assemble their team, which may include a divorce coach/facilitator, child specialist or financial expert to assist in efficiently resolving the case.

Collaborative divorce replaces traditional litigation because it removes the impersonal and overwhelming judicial system, but it does not take the “law” out of the case. You are entitled to know all of your legal rights and obligations.

In a series of team meetings, outside “homework” for the parties, individual consults with neutral professionals, the collaborative process is tailored to fit your families’ needs. Outside of the team and with a background of the applicable law, you and your attorney will identify individual issues and develop a strategy focusing on your interests and needs. After information gathering is completed, the parties and their team will create alternative solutions to resolve divorce issues.

In a collaborative process, unlike in traditional litigation, you do not focus on positions, but the underlying motivations. The “why” you have a particular view is the cornerstone to resolution. When you reach a level of deeper understanding of yourself and your spouse, it is possible to gain perspective. Ultimately and within the framework of the process, you and your spouse cooperatively become the judge of what outcome is best for your family. Collaborative divorce allows you and your spouse a safe space to understand, on a deeper level, your unique conflicts and work together to resolve your differences. This process further sets the ground work for handling post-divorce conflicts in a healthy, productive manner.

I invite you to make the choice to take control over your divorce. I invite you to Collaborative Divorce.