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New Jersey divorce article
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Ten Things to Know When
Contemplating Divorce
By
Charles F. Vuotto, Jr., Esq.
2004
- Put
Emotions in Check: Remember the following:
a.
The cost and length of divorce litigation is
directly proportionate to the emotions
of the parties; and
b.
Courts do not usually consider who was at fault in
the break up when dealing with financial issues (except, perhaps, when dealing
with alimony).
- Select
the Right Divorce Attorney & Learn Your Rights: There
are certain attributes that you should look for in a divorce attorney.
Of course, this list may vary depending on your goals.
However, primarily, you should look for an attorney who has one or
more of the following qualifications or characteristics:
a.
Certified by the Supreme Court of the State of New
Jersey as a Matrimonial Attorney;
b.
Member of the Executive Committee of the Family
Law Section of the New Jersey State Bar Association;
c.
Member of the American Academy of Matrimonial
Lawyers;
d.
Lectures frequently to the bench, bar and public;
e.
Routinely publishes scholarly articles on family
law;
f.
Has practiced for more than ten years and has
concentrated his/her practice in family law during that time; and
g.
Is organized, detail oriented, an advocate,
compassionate and can work with other attorneys.
- Protect
the Children: Beyond any other consideration, the children come first.
They should not suffer needlessly due to your decision to divorce
your spouse. Here are some of
the more common admonitions with regard to children and divorce:
a.
Once you’ve decided to divorce, try to speak to
your children together and show them a united front so that they can see that,
although you and your spouse cannot live together any longer, they still have a
mother and father who love and care for them and can work together in their best
interests;
b.
Do not use the children as pawns;
c.
Do not view your children as spoils of your
divorce litigation;
d.
Do not enlist your children as couriers or
messengers;
e.
Do not act out in the presence of the children;
f.
Do not bad mouth your spouse to the children;
g.
Do not discuss spousal disputes with the children;
h.
Do not interrogate the children about your spouse.
- Prepare
a Detailed Marital History: Essentially, you should try to chronologically summarize
all of the salient facts related to your relationship with your spouse.
Although it may seem like a daunting task, you should chronologically
address each of the following points:
a.
Length of Courtship;
b.
Timing of Engagement;
c.
Financial and non-financial contributions to
marriage;
d.
History of Domestic Violence or abuse;
e.
Breakdown of Marriage;
f.
Physical and emotional health of each party;
g.
Employment history of each party;
h.
Marital Lifestyle (see #5 below);
i.
“Statutory Factors” related to custody, child
support, alimony and equitable distribution.
(Your attorney can provide these to you.)
- Summarize
Marital Lifestyle: How did you live your life?
Did you live a low, middle or upper-class lifestyle?
One of the key issues in a matrimonial dispute is marital lifestyle.
Begin to describe it for your attorney using the following
categories.
a.
Marital residence – pool, cost of furnishings,
improvements;
b.
Vacation homes;
c.
Extent of savings in bank or investment accounts;
d.
Types of automobiles, boats, planes, motorcycles
or other vehicles or recreational crafts;
e.
Frequency of vacations and locations;
f.
Furs and jewelry;
g.
Nature of stores frequented;
h.
Country clubs;
i.
Extent of entertainment including but not limited
to: gambling, sports and hobbies, restaurants, theatre, movies and the like;
j.
Extent of gifts given and received;
k.
Extent of service providers such as household
help, gardeners, maintenance personnel and the like;
l.
Nature, extent and value of household furniture
and furnishings, including collectibles and artwork;
m.
Children’s expenses, including but not limited
to private school, camps, tutoring or extracurricular activities;
n.
Available cash;
o.
Available free time;
p.
Personal expenses run through a business;
q.
Pets (In
one case, the parties had their dog in “Doggy Day Care”).
- Identify
Your Issues & List Your Goals (Wish List & Bottom Line):
Once you’ve summarized your marital history, identified your issues
(e.g., custody, time-sharing, alimony, child support, value of a business,
hidden assets, personal injuries, etc.)
For example, “I want joint legal custody; to be the parent of
primary residence with $X in alimony; $X in child support and half of the
assets.”)
- Gather
Information & Documents: You can avoid many months of litigation and thousands of
dollars by gathering and copying key financial records prior to a divorce:
a.
Tax Returns (Personal & Business);
b.
Spending Records (checking account statements,
registers, canceled checks and credit card statements);
c.
Personal Financial Statements;
d.
Loan applications;
e.
Business records;
f.
Insurance policies and riders;
g.
Bank & Brokerage account statements;
h.
Retirement Account statements;
i.
Wills and Trust Documents;
j.
Real or personal property appraisals;
k.
Deeds and mortgages.
- List
Assets & Liabilities: A major part of the case will be the “equitable
distribution” of property. There
are three main aspects to the property division aspects of a divorce case:
(1) identify; (2) value; and (3) distribute the parties assets and
liabilities. This process,
therefore, starts with identifying all assets and liabilities.
Consider using an Excel chart or similar program, to list your
assets, how they are titled, their values and any exempt portions (i.e.,
amounts that are pre-marital, gifted to just you, or inherited by you):
a.
Real Estate;
b.
Bank & Brokerage Accounts;
c.
Vehicles;
d.
Personal Property;
e.
Retirement Accounts;
f.
Businesses;
g.
Custodial Accounts;
h.
Other;
i.
Mortgages;
j.
Home Equity Loans;
k.
Credit Cards;
l.
Tax Liabilities;
m.
Other Debts;
n.
Sole Proprietorships;
o.
Tax Losses;
p.
Stock Options;
q.
Term Life Cash Value Insurance on Terminally Ill
Person;
r.
Deferred Compensation (Phantom Stock Awards,
Top-Hat Plans, etc.);
s.
Frequent Flyer Miles.
- Summarize
Your Education/Earnings & Employment Histories:
There are many factors that are considered when setting alimony and
child support. These include,
but are not limited to the length of marriage, contributions to the
marriage, age, health and myriad of other factors.
Chief among these factors are the earning ability of each party.
Therefore, for both you and your spouse, summarize the following:
a.
Post
High School education, degrees, certification and licenses earned;
b.
Employment History including but not limited to:
employers, dates of employment, positions held, earnings, and employment
benefits received (i.e., promotions, deferred compensation, stock options,
bonuses, over-time, etc.);
c.
If unemployed, intentions regarding re-employment,
rehabilitation plans (i.e., education and time needed to acquire work
experience) and child care;
d.
Your plans for employment in the future;
e.
Your plans for retirement.
- Learn
About the Tools of Discovery:
Very often, one
spouse does not have a complete working knowledge of the other party’s
assets, liabilities, income or
activities. That is when
“discovery” comes into play. Essentially,
“discovery” is organized information gathering.
It can encompass that which is permitted by the Rules of Court or
other methods. Some of the more
prevalent avenues of discovery are:
a.
Private Investigators
i.
Can do things you cannot.
ii.
Beware of costs.
b.
Internet
(Examples)
i.
411locate.com
Locate individuals;
ii.
wnjpin.net NJ
Dept. of Labor
Employment and
Wage data;
iii.
artbrokerage.com Art
values;
iv.
njrealestate.com Cost of Living incertain areas;
v.
quickquote.com Insurance quotes.
c.
Recordings
i.
If your spouse leaves messages, save them.
ii.
Beware of Federal and State Wire Tap Laws.
d.
Litigation Methods
i.
Interrogatories;
ii.
Document Demands;
iii.
Notice to Produce;
iv.
Demand for Admissions;
v.
Depositions.
e.
Forensic Expert (e.g.,
Accountants, Psychologists, Psychologists and Vocational):
Very often, there are many issues that arise in a divorce that require
outside experts. Your attorney
cannot assess mental health issues, value a business or decide on the
employability of a party. Experts
such as the following are necessary:
i.
Business valuations;
ii.
Lifestyle Analysis;
iii.
If your spouse is not reporting all of his/her
income, you may need an expert to
evaluate his/her books and records;
iv.
Custody Evaluations;
v.
Employment Evaluations.
Conclusion
Put your emotions in check. Select
the right lawyer and learn your rights. Protect
your children from the divorce by insulating them as best you can.
Gather as much information and documentation as you can.
Identify your main issues and how you would like to resolve them.
Most importantly, develop a strategy with your attorney to meet your
goals and pursue that strategy diligently.
However, periodically perform a “cost-benefit analysis” to determine
if your strategy makes fiscal sense.
In the end, a well though out consensual
settlement is almost always preferable to a result after trial.
Keep in mind the words of President Lincoln:
Discourage litigation. Persuade
your neighbors to compromise whenever you can.
Point out to them how the nominal winner is often really a loser -- in
fees, expenses and waste of time. As
a peacemaker, the lawyer has a superior opportunity at being a good man.
There will still be business enough.
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