Did You Know
Divorce Resources - Maleski Eisenhut & Zielinski, LLC, Flemington NJ

Family Assets - Courts view a stay-at-home spouse as contributing to the family's assets. As such, if your spouse's assets or business has increased in value during the marriage, you may be entitled to a percentage of that growth upon divorce.

Amicable Resolution

Any two spouses can amicably resolve their divorce and any sub issues or post-divorce issues. Some spouses can discuss issues and arrive at a solution acceptable to both. Most spouses will need to, at minimum, consult with an attorney to ensure that they are educated about New Jersey divorce law and the implications and effects or their agreements, actions, or non-actions.

Most often, when seeking amicable resolution, spouses will elect what are referred to as "alternate dispute resolution methods." The most common forms of amicable resolution are collaborative divorce and mediation. Alternatively, parties can retain attorneys and hold settlement discussions without entering into either of these processes. Any divorce can be resolved if both parties are willing to cooperate, share information and be willing to work together to reach a reasonable resolution of the pertinent issues which face their family. This may involve compromise.

Below we discuss Collaborative Divorce and Mediation. All of the attorneys at Maleski Eisenhut & Zielinski, LLC are trained mediators and trained collaborative divorce attorneys.
 
Collaboration or Collaborative Divorce

This is the newest alternate dispute resolution process in divorce. This process may divorce spouses with a minimum of negative economic, social and emotional consequences to the parties and family. Collaborative law utilizes a team approach to resolve all divorce issues including custody, parenting time, income determination, child support, spousal support or alimony, evaluation of assets and distribution of assets and debts. Spouses may choose to retain collaboratively trained financial experts and mental health experts to assist them in creating options for resolution. Mental health experts may assist the parties in effective communication and expression of ideas. They may act as a voice for the children to help to draft a custody and parenting plan.  The professionals work for both parties. If necessary, these professionals also participate in conferences with the parties and their attorneys.

In the collaborative process, each spouse retains a collaborative attorney to advocate for his or her interests. The parties and their attorneys sign an agreement which commits them to working together to derive the best agreement for them and their children, without resorting to litigation.  Should either party seek to commence litigation, both parties must terminate the process and their collaborative attorneys must withdraw from representation. Both parties will then have to retain new lawyers to represent them in the litigation process. Moreover, if the process is unsuccessful, the parties' discussions, partial agreements or positions, and any document produced in the collaborative process are excluded and inadmissible in the litigation setting.

Conferences are held with both parties and their attorneys present, as well as any other professionals that may be necessary to assist resolution. This avoids the cost of letters and telephone calls. The parties are encouraged to communicate effectively throughout the divorce process so that they can maintain a healthy relationship with each other and the family after the divorce.

The timetable of a collaborative divorce is controlled entirely by the parties. There are no mandatory court appearances and court submissions, keeping the process private. The parties can direct the speed at which the divorce proceeds without penalties.  For this reason, this process can be less costly than litigation, although even in litigation the costs can be minimized when the parties cooperate.

Click here be directed to the International Academy of Collaborative Professionals website for additional detailed information about Collaborative Law.

Mediation

Spouses can agree to retain a mediator to act as a third-party neutral to assist them in resolving issues in the divorce. The mediator does not need to be an attorney; however, an attorney experienced in matrimonial divorce or dissolution law is helpful in promoting a thorough resolution. Although a mediator can provide legal information, the mediator is not an advocate for either party and cannot give advice to either party, for example, on the legal ramifications of a potential agreement. Therefore, it is critical for spouses retaining a mediator to also consult with a divorce attorney to either assist during the mediation process, or at minimum, to review all agreements discussed in mediation.

The goal of mediation is to facilitate communication between spouses and assist them in creating realistic and constructive options and solutions for resolution of the disputed issues in accord with their circumstances. The discussions held during mediation are private and generally not admissible in court proceedings, offering spouses a level of privacy not available in court litigation. An effective mediator will balance power inequities between parties and facilitate a respectful approach to problem resolution. Mediation also tends to be less costly than litigation.

Mediation also can be utilized within the litigation process either with the attorneys and parties or the parties alone, on some or all issues. If mediation fails, the parties can arbitrate, commence or continue litigation or enter into the collaborative divorce process. 

Click here to be directed to the New Jersey Association of Professional Mediators for more extensive information about mediation.