When going through a divorce, there are many questions that may arise as you deal with issues related to the divorce process, property division, child support and custody, alimony, and much more. Toms River family law attorney Abigale M. Stolfe answers the most common questions divorcing couples in New Jersey have, including: on what basis a divorce can be granted in the state of New Jersey; what’s involved in divorce mediation, including whether or not a mediator can provide legal advice to parties; whether it’s better to litigate in court or settle a case; and how a lawyer can help a person who is experiencing domestic violence.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Abigale M. Stolfe, Family Lawyer
Abigale M. Stolfe – a partner at Stolfe Zeigler, a boutique family law firm in Toms River, New Jersey – is known for effectively litigating, negotiating, and mediating complex cases, including child support, child custody, and visitation/parenting plans. She vigorously pursues creative, fair, and flexible solutions to divorce-related children’s issues, while protecting your and your children’s best interests.
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Read the Transcript of this Podcast Below.
On what basis can a divorce be granted in New Jersey? Does fault make a difference in determining the outcome?
There are a variety of factors under the statute for divorce, but typically, a divorce is granted based upon irreconcilable differences. There could also be cruelty, adultery, or domestic violence involved. There could be many reasons for the granting of the divorce, but most of the time, we see irreconcilable differences. Fault is not a consideration in whether or not a divorce is granted.
Can you get a divorce without having to divide marital assets and debts?
When you seek to obtain a divorce, the court will consider all of the issues of the marriage, and the divorce will occur after all open issues are resolved.
If an unmarried couple owns a home, has retirement assets, and let’s say they had two children together: will they be treated the same as a married couple who is divorcing?
When you are married, you proceed through a matrimonial docket – often called a divorce docket. When you are not married, you proceed under what’s called an FD docket or a non-dissolution docket; that’s a docket for unmarried parties. In cases where there is a period of cohabitation, and someone is seeking division based upon the length of relationship, the clerk will assign those types of complex cases to the matrimonial docket because they are more typical of a divorce case. But in either docket – whether it’s the non-dissolution FD docket or the divorce SM docket – the statutes remain the same and the courts must consider the same law on each point.
How are same-sex marriages, domestic partnerships, and civil unions treated when it comes to divorce in New Jersey?
When you have a same-sex marriage, it’s a marriage, so you go through the same process as heterosexual married couples who are divorcing. Domestic partnerships and civil unions have their own subset of requirements to secure that title as well as mandate when you are trying to dissolve that title, so those two designations, domestic partnership and civil union will have their own sub-categories that are not necessarily going to be in alignment with a divorce process.
How does divorce mediation work? What are the advantages and disadvantages of mediating a divorce?
Most divorce cases settle through or as a consequence of mediation. In a typical case, both parties retain their own attorney. First, the four of you meet – the two attorneys and the two litigants – in order to define the issues of the case. Once those issues are defined, if the parties are unable to resolve those issues between themselves or through their counsel, then a mediator will be brought in. Most mediators are accountants, attorneys, or retired judges who will sit and listen to both sides and try to foster a settlement.
A mediator does not make a decision for you, and a mediator’s opinion cannot be considered binding like a judge’s or arbitrator’s decision would be binding. A mediator’s job is to bring two sides together to the middle to try to come up with a resolution that both sides can live with. Most cases resolve through mediation because it is the most cost effective way to resolve a divorce case.
As an attorney-mediator, do you generally draft the couple’s divorce agreement, and can you provide legal advice during mediation?
A mediator cannot provide either party with legal advice, and if you have had an initial consultation with an attorney to learn your rights and responsibilities, that attorney cannot act as your mediator. If I get a call to mediate a case, I will have my staff book the date and I will not speak with either party in advance of that date. I will meet both parties together on that date in order to learn their issues and the facts and circumstances of their case. As a mediator, I cannot draft the divorce documents; however, I can prepare what’s called a Memorandum of Understanding: a document that sets forth each party’s understanding as to the agreements that have been reached. I then give each party that memorandum for review by independent counsel, who would then prepare the divorce documents.
Is there a difference between spousal support, alimony, and maintenance in New Jersey?
Spousal support and alimony are both taxable under the IRS code, and maintenance may or may not be taxable. You could be paying for your ex-spouse’s living expenses without realizing that you will be taxed on these funds. For example, if two parties agree that the husband is going to pay the mortgage on his wife’s residence, and they choose not to call that payment alimony, that payment could be recaptured by the IRS because they view it as an alimony obligation. If your intention is to pay your ex’s bills and not have that be taxable income to the recipient, it needs to be specifically defined in your agreement as a non-taxable obligation.
What is the legal definition of domestic violence, and how can a lawyer help to protect a victim of domestic violence?
Domestic violence is defined by N.J.S. 2C: 25-10, which sets forth various acts that could constitute an act of domestic violence. For instance, homicide, assault, terroristic threat, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, loudness, criminal mischief, burglary, harassment, stalking, robbery, and coercion. The newest act, which is not part of the statute at this moment but we are seeing that it developed through case law, is sexting and a transmission of sexual images through texting, emailing, and internet-based media.
What an attorney can do to protect the victim is to inform the victim, to teach the victim, and to empower the victim because there is no way an attorney can always be in the room at the exact moment when someone is going to commit an act of domestic violence. By empowering someone who is subject to that cycle of violence, you can hopefully prevent that cycle from continuing.
If there has been domestic violence, or one spouse has been intimidated by or is afraid of the other, is litigation the best option for dissolving their divorce?
If there is domestic violence in any matter, the first focus of the attorney-client contact should be on curtailing that violence. That could be through a variety of mechanisms; it doesn’t have to be through a restraining order, but in many cases, a restraining order is needed.
There’s another option where you could enter into a civil restraint which is where the parties agree to end the turmoil. One party usually moves out of the home, and they create an agreement as to how they will interact with each other concerning the children or concerning the division of their assets.
However, the divorce should have no impact on whether or not the need for a restraining order exists.
Is it better to litigate in court or to settle a case? What are the advantages of litigation versus settling out of court?
99% of the cases settle. The reason people settle their cases is typically that they want to have control of their own lives, they want to have control of their future, they want to stop the bleeding, they want to stop the emotional difficulties relative to the break-up and division, and finally, they don’t want to leave their lives in the hands of a complete stranger who may or may not ever have practiced in the area of family law or gone through a divorce themselves.
And then there is the cost: it is much more cost-effective to settle your case than to litigate your case. If you are going to litigate your case, it is important that you proceed with an attorney who knows the court system, who has tried many cases, and who is proficient in articulating your facts as they relate to the law.
When you’re looking for an attorney and you know the case is not going to settle, ask the prospective attorney whether they are an experienced litigator – that’s probably the most important question you can ask in that situation.
Most people going through a divorce are concerned about getting their “fair share” – which of course is going to mean different things to different people. What advice would you give them?
Fair share is a loose term that has no real definition outside of what an individual believes that definition should be. Sometimes, your fair share is not necessarily monetary or the percentage that you think it should be – but it could be less because the totality of the circumstances calls for that. For instance, you might be entitled to 50% of the value of the home, but under the totality of the circumstances, it might make more sense to take a greater percentage of the retirement account so that your children can stay in the home if your spouse can afford that option.
You should look at fairness as what’s right for the family and not so much what the dollar-for-dollar division looks like.
If one party strongly opposes the judge’s decision, can he or she appeal to have it changed?
If a party does not agree with the court’s final judgment, within 45 days they can file a notice of appeal to have the matter heard in whole or just in that one part by the appeals division. This is a process that takes some time – and during that process, that provision cannot be changed.