The process of deciding and moving towards a divorce is a vexing and stressful time for anyone. We ask our friends and families questions: some stupid, some obvious, others befuddling and perplexing about what we should do when our marriage is not going as we had hoped or planned. Should I get a divorce? Should I hire a lawyer? What information does the lawyer need? How do I choose a good lawyer who is right for me? Are there alternatives to the courts for resolving our differences? What about the kids? This is by no means intended to be a comprehensive guide, but it is a start on the road to divorce awareness.
Should I Divorce?
Frequently I am asked at the initial client meeting if I think the individual should get divorced. Deciding if you should divorce is not the lawyer’s job. Whether a marriage should end is a personal decision. We don’t know you or your spouse. We may not share your values or view of what a marriage ought to entail. However, we can guide you in the decision making process. Benjamin Franklin, in his famous publication, Poor Richard’s Almanac, suggested that when one had a difficult decision to make that they should draw a line down the middle of a page. On the left side of the page he goes on to suggest one should list the reasons why one ought not to take a certain action. Concomitantly, on the right side one should list the reasons why one should take the action. Poor Richard surmised that, with people being visual beings, the act of putting pen to paper and then looking at the pros and cons in black and white would sharpen the decision making process.
Other people who may not be able to make decisions based on lists or such visual aids as proposed by Mr. Franklin, may look to family and friends to discuss their marital problems and seek advice or suggestions as to how they should proceed. Your best friend or a close family member who knows you and may be able to help filter your thoughts and help you come to the right decision for you. If you are a more private person, a mental health professional may be the preferred vehicle for honing your decision making. Sometimes the decision to get divorced is made for you by your spouse. If one party wants a divorce, unlike the black and white movies or programs on late night TV, there is no way to stop the process.
If you have a choice about whether to divorce, however, it is wise to think about options before you proceed. If you are unsure if your marriage is over, marriage counseling may be a first step to take. In counseling you and your spouse can discus what you each view are the problems within your marriage and, perhaps, find some common ground and some ways to resolve what your differences are. The point is you should not start a divorce action if you are unsure that it is what you really want.
What About the Kids?
New Jersey law encourages both parents to be a part of their children’s lives. Divorcing your spouse does not mean that the parents are divorced from their children, although obviously a divorce will have a significant impact on the children’s lives. Decisions about child custody should focus on the children’s best interests as well as their needs and well-being. Custody decisions tend to focus on the parents’ historic and future ability to meet those needs.
Should I Hire a Lawyer?
Abraham Lincoln posited that, “He who represents himself has a fool for a lawyer.” That advice is equally applicable today. Divorce law is complex and the outcomes are controlled by common law principles that allow a Family Part Judge a lot of latitude. Navigating the divorce process can be daunting to a lay person. If support, distribution of property or child related issues are not in controversy in your matter, and if you are prepared to learn the procedural requirements to file the pleadings to obtain a divorce, then you may be a candidate for self-representation. But if there are support obligations to which you believe you are entitled or assets acquired by either party or debts incurred by either party during the marriage that may be subject to equitable distribution, you may want to heed Lincoln’s admonition and seek outside legal advice.
What Information Should I Bring to My First Meeting With a Prospective Lawyer?
An initial conference with a lawyer is designed to give the client a peek into the process and likely outcomes. If support is in issue, certainly bring with your tax returns and your pay stubs. Be prepared to discuss the marital lifestyle and, where applicable, any particular expenses that are incurred in the household such as private schools, college expenses, extraordinary medical expenses, vacation homes, clubs, horses, boats or private planes. It is important to be able to discuss income and how it is utilized in the household, as well as the family’s overall philosophy on asset building and spending.
It is helpful to know what your assets are and what they are worth. If there are assets that have been acquired by gift or inheritance, be able to discuss how these assets were acquired and kept as that will be of central importance to the issue of whether the asset is distributable in a divorce. If there are closely held business(es), be able to discuss your role and your spouse’s role in the business. What do you think it is worth? Has anyone ever offered to buy the business or was it ever offered for sale? Are there partners? Are those partners family members? Is there a buy/sell agreement?
If custody and/or parenting time of children is an issue. You should be prepared to discuss who historically cared for the children as well as the physical and emotional health of the child. Are there mental health issues or substance abuse issues that have impacted on parenting? Perhaps consider in advance of your initial meeting what kind of custodial arrangement you prefer and why that arrangement is best for the child(ren).
The point of an initial conference is to size up the lawyer, to determine if the lawyer and the client are a good match, to determine the knowledge the lawyer brings to the process and to get an idea as to what outcomes might be possible. Consequently, the more accurate and complete information that you are able to supply to the lawyer at the first meeting, the better able the lawyer may be at predicting the outcome.
How Do I Choose a Lawyer?
Lawyers are not a one-size-fits-all commodity. The lawyer you pick may have a dramatic impact on the outcome of your case. In New Jersey matrimonial lawyers bill by the hour, and rates can vary from $250 per hour to $600 an hour (or more). The cost of the lawyer should be proportionate to the economic and non-economic issues in controversy in your case. Not everyone needs or wants a Rolls Royce; perhaps in less complicated matters, the most expensive lawyer would not make the most sense. At the law firm of James P. Yudes, P.C., for instance, we offer attorneys at various rates to fit the lawyer to the case that makes the most sense in terms of complexity and economics.
You should of course look to the lawyer’s credentials. What percentage of the practice is divorce and family related issues? Is the lawyer certified by the Supreme Court as a Matrimonial Lawyer? Does the lawyer teach family law and what is his or her reputation for scholarship? James P. Yudes, Esq. was one of the first attorney’s in the state to obtain Matrimonial Law certification, and for the first three years that the Supreme Court of New Jersey offered Matrimonial Certification, Mr. Yudes wrote the course material and taught the course offered by the State Bar Association in preparation for the exam.
Can your lawyer take the case all the way to a Final Judgment of Divorce? Specifically, does he or she have the expertise to negotiate a settlement and, if settlement fails, to take the matter to trial and, if necessary, to the State’s higher courts? Our firm has tried innumerable matters successfully to conclusion and has successfully prosecuted matters in the Appellate Division and Supreme Court of New Jersey.
Perhaps of equal importance is whether you can work with the lawyer. You will spend a lot of time with your divorce lawyer. You need to be able to work with together. Your styles should compliment one another. You should trust the lawyer and be willing to process their advice in coming to your own decisions.
What About Alternate Dispute Mechanisms?
As an alternative to litigating in court, you may chose an alternative dispute resolution process such as mediation or arbitration. Arbitration is a form of alternative dispute resolution outside of the courts where the parties agree to be bound by an arbitrator hired by them who will review the evidence and make a decision on the outcome of their case. Generally, the decision of the arbitrator is binding with limited rights to appeal. Mediation is another form of alternative dispute resolution, wherein a mediator assists the parties in reaching their own agreement. Thus, recommendations of the mediator are not binding on the parties unless they both agree to accept such recommendations. To have an effective mediation or arbitration you need to have full economic information available to both parties as well as any pertinent information that would affect child custody.
Regardless of whether you choose to pursue a court litigation or alternative dispute resolution, the office of James P. Yudes, A Professional Corporation is here to assist you.