There are many aspects of family law in New Jersey that divorcing couples should strive to understand, particularly if they have children who will be affected by the separation. Whether you choose collaborative law, divorce mediation, or litigation, the method of divorce resolution you pursue will play an important role in shaping your future and that of your family. You should also be aware of which factors New Jersey courts consider in determining child custody and child support.
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Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speakers: Family Lawyer – Rosanne DeTorres. Matrimonial law attorney Rosanne DeTorres practices family law with the New Jersey law firm of DeTorres & DeGeorge, LLC. An accomplished appellate attorney with experience in commercial, business, and real estate transactions, Rosanne is trained both as a family mediator and a collaborative law attorney. She is a member of the Executive Committee of the Family Law section of the New Jersey State Bar Association and the Hunterdon County Bar Association. Learn more at www.danddfamilylaw.com.
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Read the Transcript of this Podcast Below.
Should a divorcing couple retain the same divorce attorney?
No, that’s definitely not permitted. Our rules of professional conduct bar the same attorney from representing both parties in a divorce action. The parties should have separate counsel.
Does a person need to hire an attorney to obtain a divorce?
It’s not required, but it is recommended where there’s anything of value at stake. Whether there are children, whether there’s a dependent spouse or a support issue in play, if there are any assets of any significance that have to be addressed—a home, a retirement account—you would definitely want to have to an attorney to make sure that it is done properly and you get what you’re entitled to.
What is collaborative divorce?
Collaborative divorce is an alternative dispute resolution technique that we use to help parties resolve their divorce without using litigation. You still need separate collaboratively-trained attorneys and the key factor of collaborative divorce is that both parties actually enter into a contract not to go to court until they settle all of their differences. The lawyers sign the contract as well, so both parties really buy into the process of resolution before litigation.
Does the collaborative divorce cost less than the traditional divorce or mediation?
It often does cost less because it’s much more immediate. In the collaborative divorce setting, while you may meet with your attorney privately to discuss strategy and to review documents, by and large you meet as a group with your spouse and their attorney so that the communication is much more immediate. You are not sending letters and waiting for replies; you’re actually having a dialog that is face to face. So, because you can negotiate face to face, it often costs less.
Is the collaborative divorce process better for children?
It’s absolutely a better avenue to pursue for children. It allows us to be extremely flexible in our approach to parenting arrangements and custody arrangements. It fosters a spirit of cooperation, conciliation, and fairness between parents so that they, while in the collaborative process, learn their own technique for conflict resolution that they can then bring to bear into their future in dealing with co-parenting issues that may come up. Because we leave the litigation piece out, it reduces conflict between the parents, between the spouses, and that always makes for a better divorce process for children. Even if children aren’t directly involved, they always feel the trickle down of the stress and the conflict that takes place when spouses litigate.
How is the divorce commenced in New Jersey?
The formal process of a divorce is started by filing a complaint for divorce or starting a lawsuit. However, we always take an alternative route and that is to try to negotiate a resolution of the case if we can—either through mediation, collaboration, or direct negotiation—before rushing off to the courthouse. In order to get that judgment of divorce, there does have to be a lawsuit filed at some point in time and we start it by filing a complaint for divorce; although, our goal is always to try to resolve the case and enter into a settlement agreement before we get to court.
How long does a divorce take from beginning to end in New Jersey?
That really is a function of the people that are involved and how motivated they are to resolve their differences. I’ve seen divorces take anywhere from a couple of months to years. On average, most people can do a relatively conflict-free divorce in 6 to 12 months.
How much will the divorce cost in New Jersey?
Again, it depends on what’s at stake and how cooperative the parties are. Lawyers generally get paid by the hour. We do offer some alternative fee structures depending on the situation and we can always discuss those with our clients. It’s hard to put a number on it, but a simple no asset divorce with no custody could be relatively inexpensive—a couple of thousand dollars—all the way up to tens of thousands of dollars if the parties are highly litigious and can’t resolve anything except when a judge has to decide the issues for them.
We pride ourselves on being able to develop creative solutions for our clients in a costeffective way. We work hard to keep our costs down, keep our client’s costs down, and to get people to move forward in their lives without exhausting all of their financial resources.
Is it better to settle than to go to court? Is that the preferred method?
Yes, statistics show that people that settle their divorce case by agreement—and it may not have been everything they wanted, but they were willing to compromise—those solutions end up working better over time than solutions that are imposed on parties by a judge or a third party. What I mean by that is that those people that don’t settle, that have to have their divorce tried before a judge, are statistically more likely to engage in future conflict that requires future court intervention at great expense than those people that resolve their cases by agreement. So, it’s always better to settle your case, from a financial, emotional, and a conflict resolution point of view.
What is divorce mediation and how does that work in New Jersey?
Mediation involves a dialog between spouses about whatever issues you bring to the table. Sometimes, we mediate just one or two narrow issues, whether it’s custody or support issues. Oftentimes, we mediate all of the divorce issues. A mediator is a neutral third party that meets with both parties, so this is the one time when a lawyer may be visiting with and meeting with both spouses—but that mediator does not represent either spouse. They are neutral to the spouses. They don’t give advice and they don’t tell them what to do or what’s best for them.
What mediators do is facilitate a dialog between spouses who can cooperate and communicate in good faith with one another. They facilitate this dialog to help people meet in the middle and reach an agreement. You want to use a trained mediator who’s been trained in the techniques of mediation and how to foster that dialog, but you also want an experienced family attorney to act as a mediator. Even though they’re neutral, they bring to bear their experience and their knowledge on the issues that are being presented and they can tell the parties what is customary and present different options for how to resolve dilemmas. Ultimately, it’s the parties’ decision how to respond, how to settle the case. Oftentimes those parties may have independent counsel, but they don’t have to.
How many sessions would you typically have for a mediation? Is it one or would you go through a number of sessions to resolve the issues?
In uncomplicated divorces, I’ve helped parties settle their divorce in one mediation session. Some people require more. On average, it’s around four to six sessions. So therefore it ends up costing a lot less than the traditional litigation methods.
How is child custody determined in New Jersey?
Ninety nine percent of all divorcing couples in New Jersey reach a settlement of their custody issues. Only 1% of the time are courts required to intervene and to make that decision for parents. Despite that statistic, lawyers bring to bear the statutory factors that go into a determination of how custody should be resolved. There is a presumption in New Jersey that both parents should have robust and significant relationships with their children. Of course, there are exceptions to the rule, such as mental illness, substance abuse issues, criminal behaviour, or domestic violence in the home—those would be special circumstances we’d have to treat differently. But because there’s a presumption that both parents should enjoy a robust relationship with their children, parents usually share custody of their children—at least for the purpose of making major decisions for them.
If there’s any conflict about how custody should be determined, then we fall back on an analysis of a whole host of factors that include what the historical contributions to the caretaking responsibilities for the children have been, the ages of the children, and the working arrangements of the parents. Are they employed? Is there a homemaker spouse? Do both parents work outside the home? Do the children have any special needs that need to be addressed? So, it is a complicated issue, but it is one that we do resolve 99% of the time.
What’s the difference between legal custody and residential custody?
Legal custody refers to the major decisions that are made for a child’s health, safety, and welfare. These are the big decisions. Things like if the child were very sick, where would they seek medical treatment, religious upbringing decisions, decisions about where a child would go to school or even college. Those are all encompassed under the umbrella of legal custody. Again, there’s this presumption that those decisions should be made jointly and that both parties should engage in that process.
Residential custody, just as it sounds, refers to where and with which parent the children live primarily—and more often than not, they’re with one parent on an overnight basis. There are different types of residential custody, such as shared residential custody arrangements, which involve situations where the noncustodial parent has their children at least two overnights a week.
Does the court consider the children’s wishes in a custody dispute in New Jersey?
I like to say that children under the age of 14 and above the age of 8 have a voice, but no vote. And children over the age of 14 have a voice and a vote. So yes, children’s wishes are considered if the child is over the age of 8. But unless the child is 14 or older, their preference is not given significant weight. Once a child is 14, the preference is given greater weight. Barring any interference by the other parent or anything like that— barring any parental alienation—and assuming that the child is mature and intelligent.
Can a custodial parent move out of the state of New Jersey with the child?
You can with court permission or the permission of the other parent, but not unless you have either one of those things.
Does the child have a choice as to whether they’re going to have visitation with the other parent or not?
That’s a thorny issue. Parents shouldn’t empower their children to have a choice because it just creates problems for everyone involved, but there are circumstances in which there’s perhaps a legitimate reason why the child doesn’t want to have parenting time with this other parent and that has to be explored. So to answer your question directly, sometimes a child can refuse and sort of get away with it—but we really want to understand what’s going on with the other parent and why is that child resistant, we need to uncover the answer to that question. Unless the child is 14 and has a strong opposition, there’s really no legal basis for a child to refuse contact with the other parent unless there’s something else going on. We always need to look at that. What is the basis for the resistance? We want to address that whether it’s by therapy or some kind of other intervention process to get the underlying cause of the child’s resistance.
How is child support enforced in New Jersey if the paying parent decides not to pay?
Most child support obligations in New Jersey are enforced through what we call the New Jersey Probation Department. That means that child support is automatically withheld from the payor’s wages and paid to the state of New Jersey by the payor’s employer. Then the state of New Jersey pays the parent that’s receiving the child support. So if the payor doesn’t pay, the state of New Jersey will actually institute proceedings to enforce the collection of the child support. They will list a case for a hearing, the payor will have to appear to explain why they can’t pay, and then the determination will be made at that time.
Can child support be modified in New Jersey?
It can be modified as long as there’s some change in circumstance that warrants a review. The passage of time is sufficient to warrant a review—two or three years have passed. So we can look back and see if the number is still accurate. If one party involuntarily now makes more or less income then yes, child support can be modified.