Common Divorce Questions (2/2)

Common Divorce Questions

Answers to some of the more frequently asked questions about the divorce process in New York and New Jersey

CHILDREN ISSUES

“What are my chances of getting custody of our children, or at least being able to see them half the time?”

Children are not property. Therefore, it is not your or your spouse’s rights that are most important. That is why the legal standard in deciding custody is the children’s best interests.

Since the children’s best interests govern the decision, just about any fact that is relevant to their best interests will be considered by the court. This means that your chances of getting custody are going to be governed by the specific facts in your case. No two cases are alike. They are all unique.

You can enhance your chances by hiring a good, experienced lawyer who has successfully handled many custody cases. He/she will assess the facts in your particular case and will advise you on how to best proceed. This may entail hiring experts to conduct evaluations, hiring a private investigator, and possibly engaging in mediation.

Every case is different and the prospects of success vary widely. Carefully select an attorney, tell him/her the whole story (good and bad parts), and follow his/her advice. In that way, you can maximize your chances of getting custody.

“When will my child support end?"

This is a question that seems simple enough, yet many factors can affect when child support will terminate. As a general rule, child support will end when the child moves beyond the economic sphere of the parents. What this means and how it can be determined is a fact-sensitive issue for Courts to address.

Many people believe that once a child turns 18 that he/she no longer needs to be supported. For many children, merely turning 18 does not spin them off out of the parent’s economic sphere. For instance, children who are 18 may still be seniors in high school, or they may be freshmen in college. Certainly attending school on a full-time basis does not allow them to go out, obtain full-time employment and become financially self-sufficient. However, after a child graduates, high school they have the option to continue down many diverse paths in life.

As an example, a child who graduates high school do not go on to college, and obtains full-time employment as an auto worker earning the equivalent of $ 40,000 per year certainly has moved beyond being financially dependent on his parents. In that case, child support would end. If, however, that same child, after graduation, continued to Rutgers University studying on a full-time basis with barely enough time to hold down a part-time job at the student union, the child support obligation would not end. (It may, however, be reduced, to reflect the fact that the child is not living at home with the custodial parent on a full-time basis.)

Conversely, a child who has turned 18, graduated from high school, and is not attending college or vocational school at all, absent some medical reason why they cannot work, may see their child supported. If this child were attending school on a part-time basis, further scrutiny of the circumstances surrounding the part-time status would need to be made to see what good faith reason there is for less than full-time attendance, and whether or not this warrants continued child support.

A child that marries or enters the armed forces would be determined to have left the parent's economic orbit and therefore the child support obligation would end. Another example would be if the child permanently moved away from the custodial parents’ residence. Again, their dependency upon their parent for shelter and necessities has ceased.

As with many concepts in Family Law, the result is very fact specific. But the concept of a child ceasing to be dependent upon their parents for their everyday needs and wants is a general rule of thumb to gauge whether the child support obligation should continue or end.

“Is there any legal reason why fathers should not be awarded custody of their children just as often as mothers?”

Custody of children is one of the most difficult issues facing litigants and attorneys. In New Jersey, there are statutory factors that are applied by a court to determine an appropriate award of custody. One of the most telling factors in determining custody is the extent and quality of time spent with the child before or after the separation. Put more simply, the question becomes what is the history of custodial responsibilities for the child? During the party's marriage, and after the birth of a child, certain duties are undertaken by each party.

Traditionally, the mother remained at home to care for the child while the father continued to be employed outside of the home. The mother, under these circumstances, became “fully employed” as the child’s caretaker–responsible for feeding, bathing, dressing, and chauffeuring the child; scheduling and taking the child to the doctor and other appointments or social activities; arising to attend to the child

at night; and so on. The mother’s job, therefore, was to care for the child. The father may have assisted in some of these talks, but it was not his primary responsibility. In these cases, when the parties have set their respective roles, the father will have a difficult time convincing a court that he should be granted custody of a child. On the other hand, if the father has assumed the “traditional” role at home, and the mother has assumed the “traditional” role of breadwinner, then a father’s role should be given weight when reviewing the statutory factors.

In recent times, more and more children are faced with two parents who are working full-time outside of the home. These children, during the workday, may be in the primary care of a third party–whether that is child-care outside of the home, a school with wrap-around programs, or nannies. In other words, it would appear that a third party has assumed some of the duties of the “stay-at-home parent.”Nevertheless, the analysis is the same: it must be determined which party is primarily responsible for the care-taking duties mentioned above. If parties share these duties equally, or if a father is primarily responsible for them, then an award of custody to a father may be appropriate.

MEDIATION ISSUES

“If both lawyers are settlement-minded, is there any point in spending more money on a mediator?”

The idea of utilizing a divorce mediator is to avoid, when possible, the need to use the services of two lawyers–one for each party–to gather the facts required for the negotiation of an amicable settlement of their marital disputes.

A divorce mediator, like a divorce lawyer, charges for his or her services on an hourly fee basis. Unlike a divorce lawyer, however, a divorce mediator meets with both parties at the same time. With the initial meeting, a divorce mediator can more efficiently elicit from the parties in each other's presence, their incomes, expenses, assets, and liabilities. By contrast, even if both lawyers are settlement-minded, each party must incur the cost of meeting with his or her lawyer, and then having the lawyers exchange the relevant information.

Not only does mediation streamline the information-gathering process and thereby result in reduced expenses to the parties, but it also streamlines the settlement process. The parties can discuss the amicable resolution of any potential disputes without having to incur the additional expense of using each of their lawyers as a conduit for their concerns.

Mediation, however, does not eliminate the need for each party to consult with an experienced divorce lawyer who will evaluate the proposed settlement from the client’s perspective. One or both of the parties may also wish to consult with an experienced divorce lawyer during the mediation to obtain legal advice regarding a difficult issue. Using the services of a mediator is money well spent, especially in cases where the parties need to identify and resolve potential issues.

“My husband wants to mediate our divorce–why should I consider mediation?”

People do not get married to get divorced. Thus, divorce is a terrible disappointment, regardless of whose decision it is. It is this disappointment, and the fear, hurt, and anger that follows, that can make divorce so difficult. Divorcing couples need help.

What they do not need is to engage in costly and protracted litigation or a process that will inflame their emotions and cause them to become more destructive. They do need the assistance of experienced, sympathetic professionals who can guide them through difficult times and help them get on with their lives. Divorce mediation provides an alternative.

Divorce mediation is a procedure designed to help to separate and divorcing couples reach an agreement, privately and informally. It employs the skills of a neutral third party (a mediator) to help forge an agreement by providing necessary information, clarifying issues, exploring alternative solutions, and suggesting possible compromises. More importantly, mediators ensure that each party is given adequate opportunity to express his or her view, thereby assuring that each person’s interests are properly recognized and protected. In the event of custody or visitation disputes, the mediator obtains the assistance of family counselors, psychologists, psychiatrists, or other appropriate human relations professionals to aid the individuals in agreeing. On the financial side, the mediator obtains the assistance of certified public accountants or experienced tax attorneys, when and if necessary.

In addition, the appropriate real estate and other appraisers will be consulted to determine the value of various assets acquired during the marriage. In mediation, settlement discussions usually proceed quickly. For this reason, divorce mediation is usually less expensive, less emotional, and less destructive than a court proceeding. Cost is simply a function of time. The less time the procedure takes, the less costly it will be. The divorce mediation process simply allows both parties to work together to obtain a fair and equitable agreement. Probably the most compelling argument in favor of mediation regards the continuing relationships of the parties involved. Divorce may end a marriage, but it does not necessarily end the family relationship. There is no question that former spouses will be required by circumstance to relate to each other on many levels after the divorce. Accordingly, the parties must resolve all disputes in a way that will allow them to cooperate in the future.

"Can a mediator be a witness or talk to the judge?"

Each state has its own rules about mediation and those rules, whether court rules and/or statutes, must be checked for answers to specific issues. Generally, mediation is a process in which the mediator, a neutral, facilitates communication between wife and husband, to assist them in reaching a negotiated settlement of their divorce. One of the cornerstones of the mediation process is that it is confidential. The parties participate knowing that what they say will not be divulged to anyone else, thereby facilitating a truthful discussion.

Divorce mediation is usually conducted with both the husband and wife together in the room with the mediator. Sometimes the mediator must speak with each party individually.

Anything that is discussed in private with one party, cannot be revealed to the other party without the first party’s permission.

At the successful conclusion of the divorce mediation, the mediator will prepare a Memorandum of Understanding (MOU) which succinctly sets forth the settlement to which the parties have agreed and which the parties will provide to their attorneys. The parties will have agreed to what extent the MOU is a confidential document. It must be given to counsel, as the attorney for either husband or wife drafts the final Agreement, and that final Agreement is then reviewed by the attorney for the other party.

If the wife and husband execute the Agreement drawn and reviewed by their respective attorneys, the divorce will proceed through the courts without the need for a trial and the Agreement will be incorporated into the party's Judgment of Divorce. However, if there are glitches along the way, and the matter goes to trial or hearing, the confidentiality of the mediation process prevents mediators from being subpoenaed as a witness and also from speaking with the judge or any court personnel.

In addition to the court rules and state statutes, confidentiality is also protected by the mediation agreement executed by the husband, wife, and mediator. It is a general practice for the wife and husband to sign an agreement with the mediator before the commencement of the divorce mediation. Usually, that agreement will address the confidentiality of the mediation and may provide that any party to the agreement who attempts to subpoena and compel the mediator to testify will be responsible for all the mediator’s time, costs, and fees, legal and otherwise, to fight the subpoena.