Melissa Donahue, LCSW is the Unit Leader NASW-NJ for Bergen and Passaic County. On January 27th, she invited Shireen Meistrich, LCSW to present a program on collaborative divorce to the Bergen-Passaic social workers. Both Melissa and Shireen are members of the Collaborative Divorce Association of North Jersey. Collaborative Divorce offers a respectful and dignified approach for families going through a divorce. Educating the professionals working with these family’s about this consensus dispute resolution option remains essential so people can understand all the options available to them during the process. Collaborative Divorce focuses on all family members goals, needs, and interests to help a family achieve an optimal resolution for a final settlement.
Thinking of divorcing or leaving a relationship, especially if you have children together? Have you seen this movie yet? If you are not dealing with a similar situation, it’s likely that you know someone who is. If so, see the movie (fine acting) and learn what not to do!
We meet Nicole and Charlie, good, caring people, loving parents, who are about to come apart in a mediation session. They intend to keep their divorce simple and reasonable so they decide on mediation, a wise decision. Unfortunately, their inept mediator was inflexible with the process – it was his way or the highway. Nicole chooses the latter. Mediation, when skillfully executed, is a valuable resource for a respectful divorce. A mediator needs to be sensitive to each spouse/partner’s needs and emotional state as well as the facts. S/he can guide a couple toward mutually agreed upon decisions.
Nicole is convinced to hire an attorney who persuades her to seek more from her husband. Charlie is forced then to secure an attorney. He selects one who articulates the benefits of alternate dispute resolution, involving kinder, gentler methods of divorcing, such as mediation. But, dissatisfied with his advice, Charlie switches attorneys to counterbalance the demands of Nicole’s attorney. The legal battle begins, way beyond what either spouse wanted. Their attorneys don’t respect the couple’s wish to have reason and peace prevail. This is a drama and there are painful moments as Charlie and Nicole are pitted against each other, at times eradicating their warm feelings in the lovely descriptions they wrote about each other in the movie’s opening. The movie does not elucidate more complicated family and personal emotions.
The divorce war ensues. A social worker arrives to observe and determine Charlie’s ability to parent. His anxiety is cringe worthy while he’s being judged by the stiff and charmless woman who comes to assess his parenting skills. Viewers witness the family evolving and ‘unraveling’ emotionally, the parents, tearing each other apart, ‘guts’ churning. Their young son struggles to adapt to changing environments, school, friends, new parental habits and loyalties… not a pretty picture.
Apart from some of the extenuating circumstances and Nicole’s lawyer’s outfits, the movie does portray the realities of what can happen when couples engage certain litigators who want to win instead of settle. Unnecessary antagonism, haggling and expensive hours can cause a family more than the usual pain of coming apart. Parents accuse and counter and their children bear the consequences.
What we did not see, in this film, was what can occur when skilled professionals offer alternate dispute resolution, a civil and respectful way to dissolve a relationship. These processes, such as mediation, not skillfully executed in this film, are available. Another method of divorce, not depicted in this film, is collaborative divorce. Collaborative attorneys respect clients’ wishes and needs, helping them through the legal process without getting the court involved. Specifically trained, licensed mental health professionals are available to attend to the emotional needs of the clients, as a divorce facilitator (this is not therapy) and to give voice to the children’s concerns (as a child specialist). Also on hand, as needed, are collaborative financial professionals who help couples assess their assets and liabilities and budgets to best move forward financially.
Had the couple in the film engaged in an alternate dispute resolution divorce, they all would have been spared much fear and heart ache. I won’t spoil it for those who have not seen the film by sharing the end. It’s a good film. See for yourself!
By: Sharon Klempner, MSW, LCSW, BCD
Divorce is a wrenching experience for all family members. Parents are sad at the end of something they thought would be ‘forever’ when they first came together. Children lose their family grouping, in the way they always knew. Now there are two homes, changes in lifestyle, maybe new people in their lives and other adjustments. But that’s not a reason to not continue to raise well adjusted children. It just takes some special attention.
• Know your children, their needs, fears, quirks, strengths and weaker areas. Keep that information in mind as you parent.
• Listen to them before you speak so you know the best way to approach things.
• Individualize them. Pay close attention to each child’s personality, their relationship with both parents, etc. – to share certain information, individualized.
• Be aware of yourself and how you look when you are speaking. Pay attention to
your voice, your facial expressions and your body language. The body speaks too
hopefully, in sync with what you are saying. You don’t want your body and face
to be announcing doom while you are saying that things will get better.
• Don’t limit what your children have to say. Hear it all – the sad, the bad, the mad.
It will give you important information about they are feeling and what they need.
If they can speak, and be heard, about their hurt and anger, they are less likely to
to act out those feelings.
• Let them know you are deeply listening by repeating your understanding of what
they are saying. They can correct you if you are wrong and appreciate when you are on target. It feels so good to be heard and understood and not shut down.
• Speak to what you hear them saying and empathize so they know you are right
there with them.
• Be consistent with most of your household rules. A little loosening lets them know you understand but trust they will be OK to carry on as usual. Dropping
all rules and tasks sends a message that nothing is the same. Continuing rules
offers structure, so important when other aspects of life are changing.
• Be the best that you can be…real, maybe vulnerable, but strong and up to the
challenge. Remember, they do as we do. You are their main support and role
Be sure to utilize all of your own supports and be kind to yourself. Life does go on and life, after divorce, is a new chapter. You have a lot to do in the writing of it.
By Sharon Klempner, MSW, LCSW, BCD
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
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.
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.
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
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:
- Denial…feeling this can’t be happening to us, it’s unreal.
- Depression…any changes in eating, sleeping, energy level.
- Anger…impatience and resentment of their partner and why can’t they change?
- Negotiation…acknowledging the need for change and how to achieve it.
- 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
Many divorcing couples are not aware that retirement and deferred compensation accounts, including IRAs, are subject to equitable distribution. Many individuals, who know that these accounts are ‘ in the pot’ to be divided, believe they have to withdraw the funds in order to transfer them – and thus pay significant penalties, taxes and interest. Thus, they think that getting their fair share is more work that it’s worth.
If you are in New Jersey, and believe either of the above, you are mistaken.
With some exceptions, in New Jersey, most assets acquired during the marriage are subject to Equitable Distribution, that is, to be divided upon divorce. This includes retirement and deferred compensation accounts, even though they are titled in the name of only one of the parties.
How does this work?
All contributions (whether by the individual or the employer) made during the marriage to pensions, 401Ks, IRAs, Deferred Compensation accounts, etc., are subject to be divided during a divorce. The percentage of the division and/or the amount you are to receive depends upon the specifics of your case.
What happens if the employee made contributions before the parties were married?
Does the employee get a credit? YES! There are specialists in this industry who use:
- the date employment began
- the date contributions commenced
- the date of the marriage
- the date of the complaint or other agreed upon cut-off date for equitable distribution
Specialists use the above information to determine the portion of the account that is pre-marital and what is in the marital pot to be divided. If your attorney specializes in family law, he/she should know qualified individuals who can make these calculations.
Some of you just read the term “cut-off” date and you’re thinking, What is that? In order for something to be in the pot, to be divided, it must have been acquired during the marriage. So the marriage, with some exceptions, is the date of the marriage until the date when one spouse files for divorce or some other cut-off date upon which the parties agree.
In addition to the specialists determining the value of the pension/deferred compensation plan, they also prepare documents known as Qualified Domestic Relations Orders (QDRO). The QDRO enables an employer to transfer a non-employee spouse’s share of the account into a separate account, without the parties having to incur taxes and/or penalties.
Note: Whenever you withdraw the money for your own use, you will have to pay the appropriate taxes, etc. A QDRO only eliminates the tax/penalty consequence for the initial transfer to the non-employee spouse pursuant to the final settlement.
It is important to learn about retirement/deferred compensation accounts during the discovery process and to obtain the appropriate documentation from an employer. Some of the documents needed include:
- The most recent benefits statement
- A copy of the plan
- The date employment commenced
- A sample QDRO or its guidelines
The reason to have a sample QDRO is that it may provide an example of what the plan does and doesn’t permit.
“It is critical to obtain all pension information during the divorce process,” states Judith Deer, Esq., President of All Pro QDRO, LLC. “So often in my practice I see parties attempting to gather information and resolve pension issues post-judgment, which is very difficult. The pensions are usually one of the parties’ largest assets and yet the least attention is paid. Be sure to thoroughly negotiate the pension benefits before the divorce is finalized.”
It also is critical to learn whether the plan permits survivor benefits. This is crucial if a person dies before the QDRO is prepared or before their benefit goes into effect. There is language that can be used to protect a non-employee spouse’s interest. This language should not only be in the QDRO but needs to be incorporated into the Property Settlement Agreement. The Settlement Agreement should have language that an employed spouse may not withdraw any funds or take any loans against the accounts until the QDRO is finalized and in place with an employer.
Additionally, a plan administrator needs to be notified as soon as possible when a QDRO will be needed so they do not place the account into payout status prior to the QDRO being instituted. Be aware that , legally, a plan does not have to put a hold on an account until there is a finalized QDRO signed by a judge, which is another good reason to get your pension benefits in order prior to finalizing your divorce.
Lorraine R. Breitman, Esq.