New Jersey Family Lawyer, Bari Weinberger, Speaks About The 5 Critical Risks of Divorce

By Bari Weinberger
January 18, 2012

You're not alone; navigating your way through a divorce can feel daunting. The most important thing you can do for yourself is to be prepared. So whether you are thinking about divorce or have already begun the process you need to arm yourself with the proper tools to get through this difficult time.

 

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Attendees learned from this Teleseminar

During the Teleseminar, attendees got valuable insights and learned from a seasoned family lawyer about the 5 key critical risks of divorce and other topics so that they can be better educated and be more confident about how best to proceed with your divorce, including:

  • Grounds for divorce
  • Steps of the divorce process
  • What to look for in a divorce lawyer and how to prepare for your first meeting
  • Options you have for your divorce: mediation, litigation and arbitration
  • Pitfalls to avoid And more.

Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speaker: Family Lawyer, Bari Z. Weinberger. Bari Z. Weinberger is the managing partner of her 10 lawyer family law firm, Weinberger Divorce & Family Law Group. Bari is certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney, a certification achieved by only 2% of the attorneys in New Jersey. Bari is the Associate Author of the New Jersey Family Law Practice, 14th Ed., 2010, a 5-volume treatise utilized by virtually every NJ family law judge and. She is working as the Associate Author of the upcoming 15th Ed. She was given an "AV" rating by Martindale-Hubbell which means that she is deemed by her peers to have very high professional ethics and preeminent legal ability in the field of family law. Her firm has created a new free webinar entitled The 5 Critical Risks of Divorce. Bari can be reached at (973) 520-8822. View Weinberger Divorce & Family Law Group's profile on our site and Bari's attorney profile on her firm's website.

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Read the Transcript of this Podcast Below.

Let's get started at the beginning and that is what prompted you to create this webinar?

Bari Weinberger:
 Well, I felt that there was a lack of comprehensive information about divorce in the public sector and naturally divorce for many people is a scary time. Our mission was to create a webinar to help empower people and to help them protect themselves and their families. Often times what I see is that people aren't necessarily ready to just jump in, retain a lawyer and start the divorce process. They want to do some research first.

I felt that more educational information was needed out there so that good people could go ahead and get answers without necessarily taking an active step toward divorce. Calling a divorce lawyer can be an extremely emotional step. There are some really good people who are a little bit reticent about that. They need a little bit of time and they want to gather some information, gather some facts and become comfortable with that idea before going ahead and moving forward.

So can you give me the basic, without going to great detail because of course people can go to freedivorcewebinar.com to get the whole picture, but can you give me an idea of what the five risks are that you cover in the webinar?

Bari Weinberger: Yes, absolutely. First we have overlooking the impact of change. Second we have being unprepared for this tsunami of emotion is what I like to call it, this overwhelming empowerment of emotion. Third is the financial impact, fourth the legal pitfalls and fifth, miscalculating future consequences. In a nutshell that's what we cover.

Let's start with some basic information. What are the steps to a divorce from your point of view?

Bari Weinberger: It can go in a number of different ways but if we're looking at it from a traditional standpoint, filing a complaint for divorce is that first critical step. That's when you go ahead and send some documents to the court and the court suddenly recognizes you as a formal filing. They put it into their system and now they recognize that this is an active case to be dealt with. That complaint for divorce includes a number of components, certain documents, insurance information, basic information about the parties and their residences and children if relevant.

That gets it started. The court fixes a docket number. It's now recognized and it moves forward on what we call a track. The court fixes a deadline by which the parties will then engage in discovery which is the next step. Discovery is an exchange of information between the parties: financial information, answers to questions, production of documents, depositions where necessary. A deposition is where we take somebody, we put them in a conference room, we have a stenographer and we ask them questions and it's actually under oath so that any answer that the person that we're questioning provides is actually a certified answer as if it were in court testimony.

We have a step for divorce which is filing of a case information statement. This case information statement document is absolutely critical to every case. It's where the clients provide basic information about themselves and their family, where they identify income information for both parties but mostly for themselves, they even attach tax returns and pay stub related information where they identify their monthly budget from the global perspective of their household. For instance, identifying monthly shelter-related expenses, the house, the mortgage, the homeowners insurance, the utility expenses, transportation costs for their vehicle including basic information like maintenance costs, repairs, Easy Pass [Highway tolls], and gasoline expenses where they identify personal expenses, health related expenses, expenses regarding their children.

This document identifies all of this information which gives a global financial picture to the court and to the attorneys so that more intensified negotiations can take place. That case information statement also gives a list of assets that are in existence and debts that are in existence. So it's supposed to provide a snapshot of the financial picture so that we can move forward with negotiations and settlement discussions. The court uses it to determine, or to assist in determining anyway, support.

The next step of the divorce is also part of the discovery because the discovery is considerable. Appraisals get taken into consideration. We have real estate appraisals and pension appraisals. We have expert reports where necessary for financial assets, like for instance value in a business, or alternatively custody experts, reports for the best interests of the custody of the children.

Then all throughout the process there's settlement negotiations that take place between counsel and the parties and conferences with the courts so the judge can maintain a handle on how the case is progressing and if it's on track and it's moving along as it should. Mandatory mediation is part of the process. Most people believe that you have to…pardon?

This is in New Jersey, only because some of our listeners might be from outside of New Jersey. So in New Jersey mediation is mandatory in cases with children or with any divorce case.

Bari Weinberger: Fair question. I don't believe that most states do have the mandatory mediation. It's sort of a pilot program here in New Jersey. First we start closer to the beginning of the case where it's mandatory child custody and parenting time mediation where the parties without attorneys go to the courthouse. They meet with the court mediator to discuss custody and parenting time. They raise the issues. They have a confidential discussion so that there is no concern that anything that they invite in that conversation or they offer in that conversation won't be used against them later.

Usually you talk to your lawyer before you go to this mediation and you have an idea of what exactly it is that you want, what type of position you want to relay and what you want to do as far as negotiations. Some times you go with a position in hand and you can actually resolve a case right then and there without council. The mediators have this as their exclusive role. So this is what they do all day long. It's a fantastic pilot program and we see a lot of success coming out of it.

When you're further along in the process after the discovery phase of the case, there's economic mediation. Economic mediation is another opportunity where generally the attorney's go with the clients to sit with a neutral professional to talk not about custody and parenting time but instead about the finances of the case. You've progressed quite a bit into this stage. Many months have generally gone by if you've reached economic mediation. So once you get there you've usually been able to narrow the issues and you can pinpoint what remains in dispute so that the mediator can focus on perhaps three or four remaining big ticket items and help try to narrow the gap for settlement purposes.

More conferences take place and the judges sometimes integrate themselves into a settlement negotiation, not so much that they're telling you what they think that you should do but if you reach an intensive settlement conference which is after economic mediation then it's an all day settlement conference at the court between the lawyers and the clients. From time to time during the day the judge will invite the lawyers into chambers and say, "Okay where are we," a practical conversation, "why aren't you settled."

Their goal of course is to take the case off of their docket so they have one less thing to deal with. So if there's a way for them to provide some insight from behind the scenes or assist in having some more meaningful negotiations behind closed doors, often times it does help and it leads to a final settlement. All that being said, if it still has not resolved and you hit the big day of trial, a lot of preparations go into trial and ultimately a case can be presented to the court with testimony and witnesses and opening statements, closing statements, essentially what you see on TV but sometimes a little less drama.

But only approximately 2% of the divorce cases in the state of New Jersey go to trial, so the likelihood of settlement is strong.

Bari let's just go back one step and maybe you can just tell me what the grounds for divorce are in the state of New Jersey.

Bari Weinberger: Sure, absolutely. We have a number of grounds. New Jersey has advanced thankfully and has recently accepted the ground or added the ground of irreconcilable differences which is no fault. It's where in the complaint for divorce or a counterclaim one party can indicate that there was a simple breakdown of the relationship of a period of at least six months and they need not disclose what that breakdown was.

Most people today opt for that choice and that selection because it tends to be the selection that is most amicable and does not impede a settlement. We also have the ground of adultery. Most people know what that is. I think it's self explanatory. There are nuances that one should talk to their lawyer about adultery because I have a number of people who come in wanting to select adultery but for a number of reasons it might not be the appropriate selection believe it or not.

There are intricacies behind the scenes that the lawyer can explain as to why or why not that should or should not be beneficial. We have the ground of extreme cruelty which most people use to use before irreconcilable differences. That essentially indicates that for a period of at least 12 months there has also been a breakdown of the relationship but there had been a very explicit reason or reasons. I've had clients come in to me and they have provided pages and pages and pages of reasons why they were subject to extreme cruelty during their relationship.

Sometimes it's warranted to put it in the complaint for divorce and sometimes it's not. There are strategies as to how to proceed in that regard. There's the ground of separation. Most people have a misconception that separation means that if you're staying in separate rooms in the house you are technically separated and the ground of separation would apply but that's not the case. The ground of separation is really when they parties are living 18 months in separate residences or more. So there has to actually be two homes.

There's also the ground of desertion. Desertion again there's generally a misconception that desertion could be an abandonment of the relationship or someone just fled the home. But that could be applicable but it's really more based upon a 12 month lack of physical intimacy that applies for the desertion ground for divorce. There are a number of others like incarceration, deviant sexual acts, habitual drunkenness and others but those that I've just outlined tend to be the most common.

When somebody is ready to get a divorce what should they look for in a divorce lawyer?

Bari Weinberger: What I always recommend is that no matter what find and retain a lawyer who is exclusive to the practice of family law. It's the old joke. Some people say don't go to a chiropractor to fix your heart problem. It's the same situation. You want to go to someone who does this as their trade every single day. So that is first and foremost. I absolutely believe that every person should be represented by someone who's exclusive to this practice.

In addition I believe it's necessary or helpful for people to use a firm that has a team approach where they have ample support staff, ample back up attorneys so that if your lawyer happens to be in court all day one day, you have access to other people who can answer those often times much needed answers. I mean you have questions and sometimes you don't want to wait until the end of the day when your lawyer gets off their feet before a judge. You want immediate answers, emergencies arise and you need help so you want to go to a firm that's equipped to deal with those issues on an imminent basis when you need them.

Also I genuinely believe that every person should go to a firm where at least the head partner, a managing partner, is certified as a matrimonial attorney by the Supreme Court of the State of New Jersey. It's just a higher qualification. And make sure that your lawyer is well-versed on the changing laws because you want to be represented by a lawyer who is up to date on the ever-evolving family laws. It changes from day to day. You want someone who is reading that case law every single day and seeing what changes and understands those nuances which could have critical affects going forward. Every little nuance makes a big difference and it could be a huge impact on the final outcome. So don't go to somebody who is slightly antiquated on their education. It's the same thing with everything. You want someone who is advanced. You want someone who is up to date. For instance, even with technological advances you want someone who's going to email you back, text you back, speak to you with emails on a regular basis, communicate with you on the weekend where appropriate. You want somebody who's going to be able to scan and email documents to you so that you don't have to wait for a letter to come in from the adversary and three days go by and you don't know what transpired.

You want imminent information, we're living in this technologically-based society and we want things now and clients should get it now. I shouldn't be sitting on information for days at a time when my client doesn't yet know it. What I know my client should know. You want someone who's going to be responsive. I would say the number one reason that clients come in here having left prior lawyers for dissatisfaction purposes is because of a failure to be responsive.

So you want to make sure that the person that you're going to retain is going to be there and not make you wait several days for a response to your questions. Otherwise you could be losing sleep.

For a divorcing person it always feels like it's an urgent matter to them so you do need to respond lawyer quickly.

Bari Weinberger: That's true Dan. That's exactly true especially because when you're dealing with custody and parenting time you've got these pressing questions and you're going to lose sleep if you don't have these answers, so you want someone who's going to be there, who's going to be a fireball, who's going to be ready to give you those answers right away.

Sure. For somebody going through divorce, which is how I came about creating Divorce Magazine, it's the most important thing, it's top of mind for you as you go through your divorce, you want that attention from your family lawyer. I can completely understand that.

How does somebody go about preparing for their first meeting with the lawyer? What should they do and what should they bring to that meeting?

Bari Weinberger: It's very simple -- first don't get stressed out because a number of people find that first meeting to just create so much anxiety. Just know that the lawyer is going to know what to do. The lawyer is going to get the information that they need from you. But if you want to maximize that first meeting one thing that you can do is create a wish list, have an idea of what's in existence, what assets, what liabilities, what's' the respective income of both parties, what are the pressing issues in your mind.

It doesn't have to be a three page list. It could just be the top 10. Create this wish list about if you had your opportunity to just sign a document right now with a settlement what would you want out of that settlement. That helps solicit conversation and that conversation develops over time. But go to your lawyer with financials, that's important if you have access. If you don't again don't stress out. It's information that the lawyer can obtain. Discovery can be conducted. We can get that information over time.

But if you have access and you have a filing system at home or you know the joint accountant and you can simply get it emailed, figure out what the last tax return was, grab the last three years of tax returns, W-2's, pay stubs, any and all account statements, bank accounts, financial accounts, stock accounts, 401-K's and other retirement accounts. Go with an idea of what businesses are in existence and whose name is on each. Whose name doesn't necessarily translate into who gets it at the end of the day but that title information is relevant, the account holder information is relevant at least for discussion purposes at the beginning.

So having an idea of what's in existence and being able to have a conversation about that with your lawyer will equip your lawyer to move forward more productively.

So Bari let's move on to talk about the different possible ways that you can divorce. You spoke a little earlier about mediation. Can you tell me just a little bit more about mediation, arbitration and litigation, what makes each of these distinct?

Bari Weinberger: Absolutely. It's important to understand the difference. If you don't it's okay because you'll figure it out over time. Mediation is confidential first and foremost. It's not binding. It's a voluntary process except in those two circumstances when the courts mandates in the state of New Jersey. It's also where you have this neutral professional in the room. You can do it with lawyers. You can do it without lawyers. Often times a lawyer or a retired judge serves as a mediator.

But you sit in a conference room or an office-like setting. It's not at the courthouse generally except for that one, custody and parenting time mediation through the courts. Here's what happens. The parties with or without their lawyers sit with this neutral professional, they identify the issues and the mediator tries to facilitate a settlement discussion, talks about compromises, makes recommendations only where it's asked. The mediator's sole goal as a neutral professional is to get the parties to come to a resolution that they can both live with.

It's never subject to discussion at court. So for instance if mediation falls through, it doesn't work out and the parties end up going through the courts later, the courts will not know what happened behind closed doors. So it's okay to go to mediation and be an open book because there's no risk that it's going to be used against you later. Now as far as…by the way, for mediation it's important to know that it has to be a conciliatory process, meaning if there's going to be one party who's going to try to strong-arm the other or if domestic violence is involved, mediation is generally not the right process for that particular couple.

So no one is going to be effective and no one is actually going to be ineffective. You want to maximize your opportunity for success in this process so you don't want to involve yourself in mediation if it's just going to fall through because there are other alternatives.

Arbitration is similar to mediation in that it's confidential and it is an out of court type settlement but what it doesn't settle is actually testimony. So the neutral arbitrator sits in a room with a stenographer, takes testimony, and ultimately the arbitrator is given the role to actually serve as a decision maker instead of a judge. Sometimes it's a retired judge but it's an extremely helpful process if you find that you're lingering in the court system and the court system is not getting to your case or trial is being pushed because they're so consumed at the court that often times clients get a little bit frustrated with the wait time, so they'll go a neutral arbitrator who could schedule dates in their office, there's no waiting in the hallway, it tends to be very efficient. But you have to be ready and confident that that neutral professional is going to give you a solid binding decision that you're going to be able to live with. Now litigation is very different. Litigation is when you traditionally go through the court. So we file the complaint for divorce as we mentioned before, we exchange the documents, we appear before the judge, the judge ultimately makes the decision, or we settle it before we get to that trial but all of it takes place while we're undergoing that whole court process. Litigation is not…

You mentioned earlier that litigation only happens in maybe 2% of the cases in New Jersey yet most lawyers would be preparing for litigation unless they're using mediation or arbitration, would that be accurate?

Bari Weinberger: You can also do it simultaneously. I have a number of clients who are going through the litigation process but are also doing mediation at interim points to try to resolve the case so that we don't find ourselves at the trial. Some people find that it's duplicative but in a number of cases it's absolutely appropriate and it can help streamline the ultimate cost and length of the case. Also 2% of the cases that litigate go to trial as you said, but litigation is the entire process. So even if we go to court during the interim period between the date of a filing of a complaint for divorce and the ultimate settlement agreement or trial, there might be interim litigation, filing of motions, asking for temporary support, temporary custody, and things along those lines. It's still part of the litigation process and that is much more than 2%. But the final decision by a judge at a trial is the 2%. By the way litigation is all public. So everything that you file in the courts, almost everything is subject to exposure.

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January 18, 2012

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