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.

“Shoot the Moon ” – Divorce Movie

I decided to do a little online research to find out what other people thought were good” divorce movies. After, I realized that not only were many of the movies new to me, one of my favorites, Bye Bye Love, wasn’t on most of the lists.

What makes a good or bad divorce movie? In my opinion, a good divorce movie has a message or opens our eyes in some way, shape or form – or maybe helps a child or adult in a real way.

The first movie on my list to watch was Shoot the Moon, a 1981 drama starring Albert Finney and Diane Keaton. Shortly into the movie I realized why most people watch divorce comedies rather than dramas. Let me tell you divorce dramas can be really depressing. That being said, Shoot the Moon is a top-of-the line divorce movie.

Spoiler Alert: Shoot the Moon would likely cause a divorced or divorcing individual to relive some raw emotions which may lead to an Aha! moment.

I’ll try not to spoil it any more for you. Albert Finney (George) and Diane Keaton (Faith) have been married for years and have four daughters. The movie starts with George, a writer, crying and then calling his girlfriend from the house telephone. The teenaged daughter happens to pick up the phone and hears part of the conversation. That evening, George and Faith attend an award show for George. The next morning they have a huge fight and George moves out.

The three younger daughters deal with the back and forth between the parents and the awkwardness of meeting their father’s girlfriend and their new situation. The teenage daughter, Sherry, wants nothing to do with her father. We know what she heard, so we know, on some leve,l that the mother didn’t tell her the nitty gritty and we are pleased that mom does say the right things.

Mom and Sherry have a conversation and then Sherry wants to know why her father left them. Faith responds, “I don’t think he left you; I think he left me.” She didn’t bad mouth George, and she made it clear that the breakdown of the marriage was no one’s fault. We have the watch how the relationship between father and daughter evolves. Personally, I applaud the acting and the writing.

There are times you think that George is moving on with his life along with his girlfriend, Karen Allen, and her son from a prior marriage. Then there are times when we think George isn’t happy in that situation, either.

Faith begins moving on with her life with the guy building her tennis court.

Although, at times, the characters talk about having to be grown-ups, it is apparent that George can’t be that when he sees Faith moving on with her life. I know, that for some, this is a hard concept to grasp:

George had the affair first, so wouldn’t he want Faith to go on with her life? Why is he having regrets?

Well, sometimes people in his situation just do. Marriages are complicated, so is ending a marriage. George is real.

There are some great scenes where George and Faith have some soft moments between themselves, and they each have the opportunity to remember that they were once in love. They each also had the opportunity to acknowledge their counterpart’s good qualities. Of course it made me wonder: What if they had gone to marriage counseling, could this marriage have been saved?

As we watches the characters develop, we see them experience the various stages of grief. We watch them experience denial, anger, depression and some acceptance.

As I tell my clients: No two divorces are the same. Just as people marry for different reasons, people divorce for different reasons, as well. The ending, which is intense and, in some ways, difficult to watch ,allots the viewer decide how this family’s story will unfold and what will be the fate of this marriage. To me, any other ending would have been anticlimactic.

If you want to see an intense or well-acted movie, go see it. If you want a better understanding of divorce from the perspective of the participants, go see it. There is no question in my mind that Shoot the Moon would make a great teaching tool on how to help those going through divorce and to give more insight into their dynamic.

Lorraine Breitman, Esq.

 

Keeping Your ‘Cool’

By now you probably know the story of Antoinette Tuff, a Georgia school employee possessing courage, common sense and wisdom along with the ability to keep her cool in a terrifying situation.  She talked down a heavily armed gunman who had gotten past the school’s security system and undoubtedly saved  many adult and children’s lives. For once, no one got hurt and tragedy was averted.

The school system,  which provided crisis training instead of armaments,  and Antoinette Tuff , who had highly developed qualities of understanding and respectful human interaction,  averted a tragedy.   The gunman was brought to a point of de-escalating his fury enough to think about what he was doing and its consequences, and to stop himself while he still could. Antoinette Tuff then gave him the confidence to stay with his decision, put down his arms, lie down peacefully and surrender. The only shouting heard on the recording is when the police announced their arrival.

We fully acknowledge the character and competence of the heroine and the extraordinary cool she displayed in such a terrifying situation. The techniques that she used are also present in the tool boxes of mediators and collaborative attorneys who have also been trained to strive for peaceful conflict resolution.

Ms. Tuff set the stage for the gunman to make the difficult decisions needing to be made. Those of us in the Alternate Dispute Resolution community help our clients get beyond their angers and fears, to overcome unrealistic expectations and to tap into their abilities to solve their problems and to make the decisions that have to be made to resolve their less dramatic, but no less complicated, situations. We help them to fully understand the issues and to identify their needs and those of the others within the scope of their dispute. We also do all this, in part, by helping to create and enforce a climate of mutual respect.

That same climate of respect that saved lives in Georgia enables parties in mediation or collaborative practice cases to find their paths through their fogs of negative emotions and tap into those “better parts” of themselves to move forward with intelligence. Where they are successful, and most cases begin mediation, there is the additional payoff of increased possibilities for future cooperation. That is why few previously mediated cases come into the courts for post-divorce litigation.

Lots of times folks who are in major conflicts automatically go into warrior-mode, seeking “big gun” representation and ready to do “scorched-earth” tactics. In warrior-mode, other aspects of human behavior are often not reachable and parties can be limited to exchanging poorly thought-out one-sided ultimatums or otherwise not be fully able to address the big picture. No case should begin with the assumption that this is the best or only way to handle their situation and it is always useful to explore whether a less aggressive mode would have a better probability of success.

When it comes to resolving a divorce or other significant conflict, such as problems between or among warring siblings over a parent’s estate, or a business dispute such as an employment problem or a partnership split, we all have choices as to how to proceed. Sometimes a litigant can be persuaded to side-step from a court case to give mediation or  a Collaborative resolution  a chance.

Antoinette Tuff should be an inspiration for us all.

Elaine Nissen, Esq.

The Jewish Woman’s Struggle for Divorce

Recent headlines about two Orthodox Rabbis, accused of kidnapping husbands, and physically forcing them to grant their wives Jewish divorces, have revealed a serious problem, a Jewish woman trapped in a divorce with a man who refuses to let her go.
Judaism does allow for divorce. However, unlike the civil process where either party may file for divorce, under Jewish religious law, only the man is allowed to ask for the divorce. He must appear before the religious court, the Bet Din, to make the request. Depending upon the community, the Bet Din might help resolve all of the parties’ divorce issues, but typically,today, they just issue a religious divorce decree called a Get.
That little piece of paper can affect generations to come. If a Jewish woman does not have a Get, she is not allowed to remarry. In many communities, she can’t even date without the Get. She is known as an agunah, a woman whose marriage is technically over, but whose husband cannot or refuses to give her a Get unconditionally and in a timely fashion. Agunah literally means a chained woman.
Should the agunah decide to enter into a civil marriage, any children she would have from this relationship would be considered a “mamzer”, a child from a forbidden sexual union. This would include incest but also includes offspring whose married mother has children with someone other than her husband. Mamzers and their offspring can’t marry within the Jewish community. Rabbis are trying to find loop holes to prevent and limit the agunah problem.
In a Jewish divorce, if the husband doesn’t start the process there is nothing the woman can do so she would be forced to give into any of his demands for her freedom. When a husband refuses to issue a Get, he is bullying and abusing his wife.
Most Rabbis are empathetic to women in this situation. Conservative and Orthodox Rabbis are providing a prenuptial agreement to couples. Many Rabbis will not perform the marriage ceremony without one.
These prenups provide that the parties agree to appear before the Bet Din to dissolve their marriage as well as agreeing that if the parties separate, the husband agrees to pay the wife a designated sum, every day, until he provides the Get. It also provides that if the wife does not accept the Get, the obligation to pay ceases. The Get isn’t finalized until the woman accepts it. Rabbis are finding that the utilizing the prenup helps to alleviate the agunah problem. Two websites where you can find the prenup as well as information on the Get process are:
•www.theprenup.org
•www.bethdin.org
•www.kayama.org provides information on the Get process

I urge every attorney, mediator and collaborative professional to make it clear in any prenuptial agreement that the couple agree to provide the other with a Get. Additionally, every Property Settlement Agreement should also include language that the parties will cooperate with the Get process and if not, can be sanctioned by the civil court. Once these items are spelled out in these documents, it is more than likely that the civil courts will enforce the religious agreement. Otherwise, such as in New Jersey, the courts will not force a party to provide a Get, unless it already was part of a written agreement. If it is not codified in a civil document, New Jersey courts see it as blurring the line between State and Synagogue/Church, because then they are requiring a party to be involved with a religious process. However, if a party signed an agreement saying they would provide a Get, then the court is just enforcing an agreement and women would no longer be trapped.
Lorraine Breitman, Esq.