We often hear the term “conscious uncoupling” and couples who manage to go through an amicable divorce. Is it really possible to have a friendly divorce, and if so, what steps can a couple take to have one? In this podcast, New Jersey family lawyer Bari Zell Weinberger answers this question and discusses the various lower-conflict divorce methods available to help couples separate amicably.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Bari Zell Weinberger, Certified Matrimonial Law Attorney
Bari Zell Weinberger is a renowned family law expert and the founder of Weinberger Divorce & Family Law Group, a family law firm with offices throughout New Jersey. She 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 also an experienced family law mediator, a published author, and a frequent media contributor on divorce and family law for both local and national audiences.
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Read the Transcript of this Podcast Below.
Can You Really Have a ‘Friendly Divorce’?
Diana Shepherd: Can you really get divorced without conflict and dragged-out litigation?
Bari Zell Weinberger: Yes. In New Jersey, the court system is actually designed to give parties a decent chance of settling out of court on their own and avoiding litigation wherever possible. If you decide to work through your issues using an out-of-court settlement process – like mediation, for example, where you and your spouse meet with a mediator to help you reach a settlement – the good news is that you can absolutely get a divorce that is low conflict and fair without the hassle and stress of multiple court dates.
What exactly is mediation and what can couples expect from it?
A mediator is a neutral third party and is not a judge that sits on the bench in family court. It might be a retired judge, but is not a judge that’s actually presiding over a case in the courthouse. This is a professional hired by a divorcing couple. Working with the mediator, divorcing spouses negotiate and work towards reaching agreements on the issues of their divorce, including child custody, child support, alimony, and how marital property such as homes or businesses are fairly divided – and other issues as well.
The mediator, through training and specialized knowledge, helps the parties address these issues in the fairest and least stressful manner possible. Mediation is non-binding which means that at the end of this process, if either side is not satisfied, they don’t need to accept the terms and they can go back and renegotiate certain items or pursue other options.
It’s very different than going before a judge in the courthouse where the court’s decision – the judge on the bench – is actually creating a binding determination. Mediation in general can save considerable time, money, and stress over going to court, and these are all savings that can certainly help a divorce remain on the friendly side.
What is collaborative divorce?
Sometimes collaborative divorce gets used as a general nickname for divorcing parties coming together to settle out of court, but it’s actually a very specific method of our alternative dispute resolution. Collaborative divorce helps couples move through conflicts in a constructive and problem-solving approach. Attorneys specially trained in collaborative divorce guide clients in amicably negotiating conflicts. A distinct feature of collaborative divorce is a pledge both parties agree in writing to be part of a respectful process, solving problems jointly to preserve the integrity of the family.
They also agree to reach an agreement outside of court. If they don’t comply, let’s say one or both spouses wants to walk away from negotiations, both attorneys are legally obligated to withdraw from representing their clients. This provides greater incentive to stick with the process.
The bottom line is that collaborative divorce is a problem-solving approach, requiring open and honest communication while affording couples increased control over the ultimate outcome.
We’ve all heard the buzzwords conscious uncoupling, thanks to Gwyneth Paltrow who credits it with changing your divorce into a positive experience. What is conscious uncoupling and how does it fit with what you’re talking about?
Conscious uncoupling seems to be a term that originated in Canada in 2010, so a few years before Gwyneth Paltrow made the term famous when she announced her divorce. In a legal sense, conscious uncoupling is similar to a collaborative approach to divorce where both parties of a separating couple agree to work with one another through the assistance of counsel without availing themselves of the traditional family court process.
Whatever you call it, collaborative divorce or conscious uncoupling, the focus is on the dignity of the process and the wellbeing of all involved and not expending countless dollars on legal fees.
How do lower-conflict divorce methods benefit children?
There are so many benefits for children when you stay out of court. When you use mediation or collaborative divorce, number one, you as parents, not a judge, have the power to make custody decisions like how much time your children spend with each of you, where they will attend school and worship, where your children will receive medical care, and what extracurricular activities they’ll pursue.
Number two, throughout this process and beyond, your children see their parents cooperating and they don’t feel that they have to choose sides.
Number three, you forego a custody battle. So instead of the fighting, the stress, and tension that your kids can feel, and spending money on legal fees, you will be able to more quickly and efficiently focus on creating a stable new life for your children, working together with your child’s other co-parent.
What are some other out-of-court methods we should know about? For example, what’s arbitration and is it ever used in a divorce setting?
It’s good to mention arbitration. It’s another out-of-court method, but it does operate a little differently. Arbitration is much more formal than mediation and it can be binding or not binding. Both parties must agree to arbitrate, and they select an arbitrator who will hear both sides and then render an actual decision much like a judge. While not as formal as court, arbitration is much more structured than mediation. If you agree to binding arbitration, you must accept the decision.
In nonbinding arbitration, you do not have to accept the decision of the arbitrator, but depending upon how the arbitration agreement was initially prepared, you would likely wind up appealing the determination. So while not as friendly as the others we’ve talked about, it’s still an alternative to court.
How do you know if one of these lower-conflict methods is truly right for you?
The divorcing parties should be reasonably able to work through their issues, sitting down with each other. Remember, a friendly divorce does not mean you need to be friends. What it does mean is that the two spouses can commit to discussing their issues and working in an amicable and civil way towards positive solutions.
There are some cases where the couple might be better off in court if there is a history of domestic violence in the relationship, for example. One spouse may be intimidating the other or there may be patterns of abuse or control in the relationship. In these cases, having a judge hear the case in the structured court environment may be what is needed to arrive at a fair and just outcome.
For most divorcing couples, it can be helpful to sit down and think whether these methods can work for you.
If you’re currently locked in a high-conflict litigated divorce, is using a lower-conflict method out of the question?
The surprising answer is no. At almost every step of the divorce litigation if the couple decides they want to try mediation, they can. Also, a couple in litigation can use mediation for certain issues. Let’s say the main conflict is over asset division, and that’s really why the couple is in court. They can shift that issue or another issue such as child custody to mediation and leave just one court issue to the court to deal with.
How can our listeners learn more about low-conflict divorce methods in New Jersey?
I encourage listeners to download our guide, “Seven Benefits of Settling Out of Court,” for more on everything I’ve discussed today.
What special help can your firm provide to individuals seeking a low-conflict divorce?
At Weinberger Divorce & Family Law Group we can help in a number of ways. If you are seeking an attorney to represent you, whether you are deciding to mediate or use collaborative divorce or even if you’re not sure that you might need to litigate, we can help you.
We are also a source for divorce mediators. If you are looking for a skilled mediator, look no further than Weinberger Divorce & Family Law Group. All of our mediators are also attorneys, meaning you will have someone who really knows the law helping you with your matter. We also offer consultations so you can sit down and talk to one of our mediators to find out if the process will work for you.
We have offices in Bergen, Burlington, Monmouth, Morris, and Somerset Counties and serve clients throughout New Jersey.