Going through a divorce is often an emotionally and financially difficult experience. However, it’s important to stay educated and make the right decisions. From what qualities to look for in a family law attorney to the various methods available to solve divorce issues, Rosalyn Charles – a Newark family lawyer – discusses and offers tips related to the divorce process in New Jersey. Listeners will gain a deeper understanding of what is involved in a divorce and will become better prepared.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Rosalyn Charles, Family Lawyer
Rosalyn Charles is a Newark family lawyer who provides comprehensive family law services. She is a former prosecutor, a former municipal court judge, and a formidable litigator who has practiced law in northern New Jersey for more than 20 years.
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Read the Transcript of this Podcast Below.
What are the grounds for a divorce in New Jersey?
There are a number of grounds for divorce in New Jersey. They range from adultery to desertion, extreme cruelty, separation, drug addiction, mental illness, imprisonment, and even deviant sexual conduct. There’s also irreconcilable differences, and quite frankly, that’s what most people utilize as a ground for divorce in the state of New Jersey. It’s just easier, and you don’t necessarily have to spread all of your business all over the place.
Aside from it being easier and, of course, more private, are there advantages to using the no-fault ground of irreconcilable differences rather than a fault ground?
You have to litigate all of the grounds. Irreconcilable differences is a lot easier to prove, and that also just assumes that you move forward toward a trial. Most divorces settle and and most divorces, unfortunately, are the dissolution of a marital partnership. If I must just be very frank, it’s a business, the dissolution of a business. Ultimately, what it really comes down to at the end of the day is, how are we going to divide what we actually have accumulated during the course of our marriage? It’s just a cleaner route to go.
Can fault ever play any role in terms of property division?
It most certainly can, but it must be proven. What is the fault? Usually where a fault would play a role is, where you would be able to show that one spouse fraudulently engaged in some kind of course of conduct that just dissipated marital assets without your knowledge. That’s a difficult way to go in terms of a truce, but fault can play a role in the division of marital property.
If someone has decided that they want a divorce but they’ve not yet shared that decision with their spouse, what’s the first step they should take?
If you’ve not yet shared the decision with your spouse – I mean, I would go about gathering various financial information as well as trying to prepare myself both emotionally as well as economically for what’s going to be somewhat of an upheaval in your life. Share it with your spouse, ask the question, “Why?” Get prepared for that conversation to just share it with your spouse and explain not necessarily “why,” but every individual situation is different. We’re not trying to move forward and blindside someone with being very dramatic and just serving them with divorce papers. I think you have to have that conversation. Let’s get ready for that conversation. That conversation means that you have to have counseling or discuss it over with other family members. Get ready for that conversation with your spouse.
Aside from going to court, are there other ways to resolve divorce issues in New Jersey?
Ultimately, you’re going to end up in court, but what are you going to do before you get there – and, yes, there are other ways. One can engage in the meditative process, where the parties sit down with a third party and try to hash out their issues and ultimately come up with some kind of pre-filing, property and settlement agreement. There is the collaborative divorce method, which has become very popular and is gaining a lot of steam in the state of New Jersey from the standpoint that it often works to keep the cost of litigation down. The collaborative divorce effort utilizes both attorneys, sometimes financial advisors, sometimes psychologists. Just try to look at the whole union and the separation of that union from both practical, financial aspects as well as the emotional aspects of it. At the end of the day, you are going to end up in court. It’s just how long are you going to stand there. The mediative process as well as the collaborative divorce process, assuming that they are successful, allow you to get in and out of court rather quickly because there you have resolved all issues that need to be litigated, so all you really do is file a complaint and potentially await the answer of the other party, and then wait for your court date to be divorced.
You mentioned the cost of the various different methods. Can you give us an idea of how much does a divorce costs in New Jersey?
It varies. Most attorneys engaged utilize an hourly basis, and it really depends on the number of hours that the attorneys spent on your case. I’ve had divorces that have been as low as $5000 to $6000, and I’ve also engaged in divorces that have eclipsed $100,000. How much are we litigating it? How much of the party is able to get along? Most folks are not necessarily on the same page when it comes to how we’re going to divide assets. I’ve seen many folks, more than others, on the same page on how they want to deal with their children, but most folks have to get to a point where they can see what is fair in their eyes, and that’s what’s called a settlement. You really just can’t put a break line on how much it costs to get a divorce, but I do know that the more the parties are in a position to cooperate, with the assistance of their attorneys, and they’re able to hash through the more important issues as opposed to arguing about what might be considered the less important issues, you can bring down the cost of litigation substantially.
How can someone keep their cost down as well as expedite their divorce process? Do you have any best advice?
I think the meditative and the collaborative divorce process will assist something of that nature because it allows all parties to sit together and actually look each other in the eye and get to the heart of what it is that needs to be resolved as you dissolve what could be a very short-term or very long-term relationship. The meditative and collaborative divorce process cut down on cost substantially. The reason it does so, I believe, is because the individuals, two most important people in the litigation – that being the husband and the wife, the husband and the husband, the wife and the wife, whatever the relationship is comprised of – are able to directly look at each other in the eye, with the assistance of other parties, and get to the heart of what’s really important to them and how they’re going to resolve those issues.
It seems as though a do-it-yourself divorce should save people time and money, but are there any pitfalls to going this route?
There are countless pitfalls for representing yourself in court without the assistance of an attorney. It really depends on what the issues are. Some people have not been married that long, they’ve not accumulated any assets, they don’t have children; for those individuals, I think, it’s an ideal situation for them to represent themselves in court because there’s really nothing to lose. But if you have children, there can be some odds as to how you should move forth in raising those children – if there are custody issues involved, if there are parenting time issues involved. If you have assets: Do you have a home? Do you have substantial financial interest? Who is the breadwinner? That’s when it becomes much more complicated, and at the end of the day, if you represent yourself throughout, you could end up cheating yourself out of some things that you might be rightfully entitled to. So, yes, there are pitfalls, but it depends on what’s at stake.
What quality should someone look for in order to choose the right divorce attorney for their unique circumstances?
I think when you choose any professional, it’s just not their ability to do the work but it’s the rapport that you’re able to develop with that person. The divorce process is a very emotional process, and I will say that although all divorce attorneys are not your psychologist, they are not your counselor, you have to feel comfortable revealing certain issues that have pervaded the relationship and cropped up during the course of the litigation with the person. You have to feel comfortable that you are able to, at some point, communicate with your attorney about very important issues regarding the litigation in hand. It’s all about rapport. I think you need to like your attorney; you don’t have to love them, but you need to like them. You need to feel confident with their style and how they move forward with your litigation. It’s a relationship. You’re going to be involved in that relationship, at least in the state of New Jersey, on average, for at least a year. Outside of competence, I think there must be a rapport also.
I presume if you don’t trust them that they are not going to be able to do the best job for you because you’re obviously going to be withholding information.
That might be the case. Most people, most litigants, when they come to your office, they want to trust you and they’re kind of aware that it’s not a good idea to hold back pertinent information from your attorneys. Maybe I used the word trust, but I think I used the word rapport. It’s important on the attorney’s side to be able to ask the right question and to communicate in a manner in which your client understands, because attorneys have a way of talking and explaining things that sometimes the lay person doesn’t get. So that attorney needs to be able to break things down into common parlance so that someone understands. That’s how to build trust and that’s how you develop the rapport with your client. At least that’s the style that I try to engage in. I try to break things down into common parlance, and that sounds like a very fancy word, but I just plain speak and engage with my clients in that regard.
What are the key documents to collect and bring to the initial meeting with a divorce attorney?
For every situation it is definitely different, but during my initial counsel, I not only try to discern what the potential grounds for divorce might be but I also try to get an idea of what the finances are in the relationship. How many children? Where is child support coming? Is this an alimony case? We’ve kind of hit that buzzword “finance,” so key document(s) to bring might be last year’s tax returns and just something that would give you an idea of the income between the parties and how I’m going to take care of my client as the litigation moves forward.
Are there any advantages to having a marriage annulled rather than getting a divorce?
Annulments are very difficult to get, but if you have the appropriate grounds and you’re able to get an annulment, with an annulment, if it’s an alimony case, alimony’s not going to be an issue. It kind of puts all of the finances back to a point where they were pre-marriage. The only issue that never goes away during the course of an annulment is child support. But alimony is clearly off the table if you are successful, if you’re able to show that the marriage was a complete fraud in the inducement, meaning from the beginning – not things that kind of cropped up during the course of the marriage, but fraud in the inducement, which means I was hoodwinked into marrying someone based on certain information that was given to me by that person. So, yes, there are certain advantages to getting an annulment.
It sounds like the grounds for annulment are different from the grounds for a divorce. Is that the case?
Most certainly, and typically it’s some kind of fraud. I won’t say it’s hard to prove, but there are just not a lot of annulments granted out there.
Can you tell us the difference between an uncontested case versus a contested case in terms of how it moves forward?
That’s an interesting question because all cases are contested from the beginning. Uncontested means you’ve settled your issues, contested means you are litigating your issues. Quite frankly, up until the point that you settled your issues, the case is contested. Uncontested case means that we settled the issues, there’s a property and settlement agreement, and we’re about to go into court and put the terms of our agreement on the record and it’s over. Ultimately, you would call it a non-trial case or a case where ultimately you’re not going to go before the judge, call witnesses, and lay out all of the proofs that you may have collected during the course of the litigated process and engage in a trial.
Is it true that going to court is the only way to ensure getting your fair share during your divorce?
In the state of New Jersey, you have to go to court. The question is, how long are you going to stay there? If you’ve resolved all your issues before the complaint is filed and everybody’s on the same page, it’s really just a matter of ultimately getting that judgment for divorce. There’s not going to be the discovery process and the bickering back and forth, so it’s not a question of fair. Ultimately, you’re going to end up in court at some point, but it’s just how do you land there and how do you leave. If you’ve gone through a mediative process successfully and/or a collaborative divorce process successfully, you’re going to court and you will reap the benefits of that process. A judgment of divorce will ultimately be rendered without a whole lot of court appearances.
In the case of a litigated divorce where you haven’t really resolved some or maybe any of your issues, and you get a judgment – let’s say that you really don’t agree with that for whatever reason – is it possible to appeal that decision?
If you’ve settled the case and you’ve gotten a judgment for divorce, there are no grounds for appeal. If you go as far as a trial and ultimately allow a judge to make a decision on all the issues in the case, then you have an option of appealing the matter to a higher court. That will take forever and drag out the process even further. So, yes, you can appeal it.