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.

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:

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.

Young Children and Divorce

mission statement for the collaborative divorce association of north jerseyYoung Children and Divorce…..On March 16, 2015 a group of attorneys and financial professionals of the Collaborative Divorce Association of North Jersey attended a presentation by four of the mental health members of the same group. Toby Friedman, LSCW, Linda Taylor, PhD, Elisabeth Curshen, LCSW and Sharon Klempner, LCSW offered a peak into the window of how younger children experience divorce. The group viewed “Split”, a documentary, by Ellen Bruno, in which children, age six through twelve, share their feelings about their parents’ divorce and how they cope.

Various aspects of the children’s divorce experience that Bruno covered were: Wondering, Two Homes, Back and Forth, Missing, What Happened, Wishing, New People, May Be, and Life Goes On. Seeing and hearing a young child say,”It’s something that you love breaks and you want to put it back together” but can’t or “I feel it was
my fault cause I was hard on my mother” takes the viewer into the child’s head for a moment to empathize with the curiosity, fears, helplessness, dependence and confusion. One marvels at their attempt and success at various ways of coping.

The group discussed how parents can be overwhelmed with their own emotions and responsibilities so they may not realize what their children are experiencing. Attendees were informed that children do not want to upset or anger their parents so they may not share all their feelings. Attorneys appreciated the Child Specialist role that mental health members of the Collaborative Divorce Association of North Jersey perform to help children express their needs and help the parents understand those needs. The Child Specialist is the only member of the Collaborative team who sees the parents and the children, in a brief and focused manner. The Child Specialist is also available, post divorce, if requested, but only in the Child Specialist role, not as a therapist.

The presenters stressed that the importance of the role of the Child Specialist is not just for young children but extends to teens and adults, even those who are married with their own children.

Sharon Klempner, MSW, LCSW, BCD

Divorce: Changing versus Ending the Relationship

There is no such thing as divorce…It is impossible to end a relationship.  It is only possible to change it.  Marriages cannot be ended… We can tell each other that they ended, we can even get government officials to declare they ended but we cannot end them.

The quote above is from Debbie Ford’s book, “Spiritual Divorce” and excerpted from the 2014 Advanced Training Manual of the New York Association of Collaborative Professions and the North Jersey Collaborative Law Group.

Once you have committed your heart to another person, you may revoke the commitment but not the reason you initially made it.  At some point, the partner you now wish to leave was compelling enough for you to have pledged yourself, to him or to her, forever.  Though you may desire to completely eradicate the relationship from your life, especially if you have children, it’s unlikely that you can erase the way that you have changed as a result of the marriage.

Further proof of the permanence of the past resides in the precious faces of your children, which can bear a resemblance to the partner your may wish to never see again.  Acknowledging the good that resulted from the marriage will increase future communication between you both which is crucial to cooperative co-parenting post-divorce.  Collaborative divorce can help  you accomplish such a goal by emphasizing the constructive roles you both share in raising your children [or decreasing the stress of emancipated children].  A Collaborative divorce preserves your parental relationship rather than contributing to a negative dissolution of the bonds between you, as often occurs in a litigated divorce.   Collaborative professionals are sensitive to the various needs of  parents and children [young and older] and committed to helping the whole family move forward in a restorative manner.

Pamela Zivari, Esquire

Therapy Can Be an Important Part of the Divorce Process

therapy in divorceOne of the things that I have noticed over the course of my career as a family law attorney is that people going through the divorce process have an unwillingness to go to therapy even though they could benefit greatly from the process. “I don’t need help, I’m dealing with it” or “I need a divorce, not therapy” are refrains I have become used to hearing. Continue reading

Before You Start The Divorce Process

You can’t make another person be something they aren’t.

In a perfect world,  you probably would not be getting divorced. So if you are going to go through mediation, the collaborative process or litigation, your soon-to-be-ex-spouse is not going to have a major personality change. If he/she was selfish during the marriage, he/she will be selfish during the divorce. If he/she was stingy, he/she will continue to be that way.

Keep an open mind.

If you approach the divorce process with a mindset like: <i>“I only will accept X, Y and Z and nothing else.”then not only won’t you do well in the mediation or collaborative process, you will spend a significant amount of unnecessary funds in the litigation process, as well.

Yes, you should have a basic plan. Yes, you should have an understanding of your financial picture and where you want to be at the end of the divorce. But you also need to be flexible and able to compromise. You also need to hear what your counsel is saying . If you think you’ll be the first to get something no one else gets – what we lawyers refer to as “making new law”- then great. But, remember, you may not be successful and whether you are or are not, it will cost you thousands of dollars to get there. For everyone else, consider these tips:

Get advice from a specialist in your state! Family law differs from state to state</span></i>.      Even neighboring states such as New Jersey and New York have significant      differences.
Be transparent.  Be honest and open when providing information to your spouse and the professional working on your case. Trying to hide or mislead the other side about pertinent information, such as the existence of bank accounts, can deal a fatal blow to the entire process. Even if you don’t think it’s  a big deal, when the other side finds out that you lied about something  relevant, it may not be able for him or her to trust your information any longer. The voluntary process of mediation or collaborative law could then fall apart.
Act in good faith. If you reach an interim agreement during the mediation or collaborative      process, abide by it. If you agree in your mediation session not to disparage the other party to the children and then you go home and disparage him/her, you’re being counterproductive to the process. If you agree not to spend money from a certain account and then withdraw most of the money, it will just cause the other party to get angry and distrust you. Eventually, you will end up in dragged out litigation. The more you uphold the interim agreements, the more likely your spouse will have reason to  believe you will abide by the final agreement.
Take responsibility for your actions and your future.</b> Don’t blame everything on everyone else and don’t rely on everyone else. Bad outcomes are usually a two-way street. This applies to your  marriage and to your final settlement. Don’t rely on theprofessionals to make all of the decisions. Be actively involved and know your finances, figure out what is best for you, and work with the professionals.
You are your own best friend and your worst enemy. The divorce process is a stressful time for everyone involved so you need to find time  to relax and get over the trauma of the separation. At the same time, you need to keep your emotions from causing you to agree to terms that you can’t live with. You shouldn’t agree to a settlement you’re not satisfied with, out of guilt about how the marriage failed or out of the hope that there will eventually be a reconciliation.
Justice? There is a misconception that “having your day in court”  will not only give you the chance to plead your case to a judge, but will result in justice. For example, believing theJudge will punish your spouse because he/she had an affair – not likely to happen. There are rules of evidence and, often,  the things you think should be heard  can’t be and,  many times.  the things you think are important to the outcome, are not. The reality is, that leaving matters up to the court is often a disappointing experience for both parties.
Just Because You Don’t Like It, Doesn’t Mean It’s Not Fair. You won’t get everything you want. A divorce involves compromises made by both sides. If both parties are satisfied, but not overjoyed with the results of the process, then it  likely resulted in fairness. Focus on the issues most important to you and be prepared to compromise, even if you’d rather not. If neither side agrees to compromise on any matters of significance, you’ll end up in litigation and your divorce will become a much more expensive, painful and prolonged exercise.
These are some of the things to consider when you weigh the merits of collaborative law, mediation and litigation. Resources like www.collaborativepractice.com can put you in touch with collaborative professionals in your state and www.apfmnet.org can put you in touch with mediators in your state.

Lorraine R. Breitman, Esq.