Entries Tagged as 'Divorce Mediation and Law'

Name Change in a Divorce in NJ

New Jersey law allows either spouse in the divorce process to change their name.  N.J.S.A. 2A:34-21 reads in pertinent part:

The court, upon or after granting a divorce from the bonds of matrimony to either spouse … may allow either spouse … to resume any name used by the spouse … before the marriage …, or to assume any surname.

But what happens if a couple is only being granted a divorce from bed and board or a limited divorce?  A trial court recently addressed this issue in a recently published case (Leggio v. Leggio, FM-16-1229-04).  In short, Mrs. Leggio asked for a name change some 10 years after their divorce from bed and board was granted by the court.  The court denied her name change request, not because of the time elapsed (which wasn’t an issue — an earlier case [Olevich v. Olevich, 258 N.J. Super. 344 (Ch. Div. 1992)] indicates no time bar for that kind of request), but because the state does not recognize a divorce from bed and board as a dissolution of a marriage.  In the eyes of NJ, the Leggios are still married.  Mrs. Leggio could go through the more lengthy regular name change process if she wants or convert her divorce to a full divorce.

Contact Marvin Schuldiner at Sanns Mediation if you want to find out more about mediating your divorce.

Power-of-Attorney Restricted in Divorce Cases

A Superior Court Judge in Ocean County ruled that unless a person has been declared incompetent and needs the assistance of a guardian, that person must appear in court for a divorce in person.  In a case of first impression, Judge Lawrence Jones made his ruling in Marisco v. Marisco (FM-15-1152-13-N).  The decision was made a year ago, but was published this week.

The litigants are both octogenarians and wed in 1978.  While they have no children, the husband (defendant) has an adult daughter from a previous marriage.  He appointed her as his Power-of-Attorney-in-Fact, including authority “to institute, prosecute and defend any actions or proceedings brought in any court.”  When the defendant responded to the complaint filed by the plaintiff, his daughter signed the certification as his POA.  Plaintiff objected, which led to this ruling.

The court ruled: Nonetheless, for the foregoing [legal] reasons, there are significant concerns about a party utilizing a POA in a contested divorce. Accordingly, the court denies without prejudice defendant’s request to appear in this proceeding by power of attorney through his adult daughter. [Daughter] is not judicially authorized to sign pleadings, affidavits or certifications, or otherwise testify in writing or verbally on defendant’s behalf. [Daughter] may, however, testify as a witness in her own right on relevant matters within her personal knowledge, if called as a witness by either party.

After the judge issued his ruling, the husband began to personally participate in the divorce process and the parties settled their divorce.

If you want to learn more about mediating your divorce in New Jersey, please contact me.

HT: NJ Law Journal

 

Expectations During a Divorce

One of the biggest causes of anxiety for people considering a divorce is the unknown expectations about the process.  Elinor Robin explains in this Huffington Post article about some expectations to have:

  1. Expect the courts to move in strange ways — it’s not like TV portrays court.
  2. Expect that divorce will take you into uncharted waters where you will need extra support.
  3. Expect to enter a bizarre time warp — not everyone is at the same place at the same time emotionally or with decision making.
  4. Expect to feel like you are at a disadvantage — largely due to the relative speed of movement caused by #3.
  5. Expect change and expect more of the same –
  6. Expect that dislike for your soon-to-be-ex will be difficult to conceal.
  7. Expect a sense of failure (as to the failed relationship and the “wasted” years) and a sense of loss (of clarity, identity, connection and self-control).
  8. Expect that your children will be impacted by your divorce — mediation can help to minimize that.
  9. Expect that you’ll make mistakes — especially parenting and dating mistakes.

If you want to learn more about mediating your divorce, please contact me.

Mediating Difficult Divorce Situations

On May 9, 2014, I was honored to serve on a panel to discuss mediating difficult divorce mediation scenarios at the NJAPM Annual Divorce Seminar.  We talked though (and encouraged audience participation) situations including nesting, reimbursement requests for breast enhancement surgery just prior to the divorce, threats made by one party against the other in mediation and more.  Thanks to Joan Geiger for leading the panel and to my fellow panelists Pamela Zivari and Gabrielle Strich.

New Year’s Resolutions for Divorced Parents

The Huffington Post has a nice article on New Year’s resolutions for divorced parents.  Some are obvious, but not everyone may be thinking about these things.

Happy New Year to all my clients and readers!

 

Divorce from Bed and Board

New Jersey has a law on its books from 1907 that allow a divorce from bed and board, also called a limited divorce.  The law was intended to allow couples to legally divorce without also receiving a religious divorce if their religion prohibits divorce (such as Catholicism).  In essence, the law allows a couple to break their economic bonds and go their separate ways while at the same time they remain married and they are not allowed to re-marry.  Since NJ does not recognize legal separation, this is the closest the state comes.  This also could potentially be used by couples who want to divorce, have no plans to remarry and want to remain on their spouse’s medical insurance (note: some insurance companies may look at limited divorces as a perpetuation of a fraud — consult an attorney before attempting this).

There is a downside: either spouse can have the limited divorce decree converted to a standard divorce decree without notice to the other party.  Also, both parties must agree to the divorce from bed and board.

A limited divorce gives people more options, but it is important to understand all the nuances.  If you are interested in pursuing a mediated divorce, please contact me.

NJ Civil Unions, Federal Law and Taxes after United States v. Windsor

On June 26, 2013, the United States Supreme Court issued their opinion in United States v. Windsor.  In this case, a woman married in Canada to another woman was denied the same death (estate) tax benefits that married couples receive.  The benefits were denied under a federal law called the Defense of Marriage Act (DoMA) passed in 1996.  DoMA’s Section 3 defined a marriage for federal purposes being solely between a man and woman — hence why the federal government denied Edith Windsor the death tax benefits in her marriage. In a 5-4 ruling, the court declared that Section 3 of DoMA is unconstitutional.

New Jersey does not allow for same sex marriages but does have a civil union statute that resulted from Lewis v. Harris.  In that 2006 case, the NJ Supreme Court unanimously declared that prohibiting same sex unions violates the equal protection clause but in a 4-3 decision left it up to the legislature to determine how best to give same sex couples equal rights of married couples.  The legislature chose civil unions.  I’ve covered this topic previously here and here.

Yesterday, the Internal Revenue Service updated their policies to reflect the invalidation of DoMA Section 3 in Revenue Ruling 2013-17.  In a nutshell, the ruling mandates that legally married same sex couples must follow the same procedures as heterosexual marriages, regardless of where they live.  So if a same sex couple marries and resides in a state that does not recognize same sex marriages, they will have to file as unmarried for state taxes and married for federal — ironically, the exact opposite of how it previously worked for same sex couples in a state that did recognize their union.  Same sex married couples can also refile their taxes covering the last three years if beneficial to them.

For NJ (and other states) couples in civil unions, the ruling does not recognize a civil union (or domestic partnership) as equivalent to a marriage and thus for federal tax purposes civil union partners are not married. See the IRS’s FAQs.  While it is not explicitly stated, presumably other aspects of federal tax law will not extend to civil unions.  In a dissolution, this can impact equitable distribution of assets and liabilities (a tax free event for married couples but gift taxes may apply to civil unions) and alimony (where it may not be tax deductible for couples formerly in civil unions).

Post-Windsor, Garden State Equality filed an updated case against the state of NJ seeking a declaration that civil unions do not provide the same equality as marriage (see Garden State Equality v. Dow).  This IRS Ruling certainly helps that case, and I would expect to see amended filings shortly.

If you are seeking to dissolve your civil union, be sure to find a mediator who has expertise in this area as it is quite different from a heterosexual divorce.  Feel free to contact me with any questions.

Changing a Child’s Name After Divorce

The NJ Supreme Court recently gave a decision in Emma v. Evans. In this case the divorced parents shared legal custody of their two children but mother Jessica Evans was the parent of primary residence.  The children’s father, Paul Emma, discovered through school records that the mother had changed the children’s surname from Emma to Evans-Emma.  Competing motions ensued, escalating to the Supreme Court.

The Court ruled unanimously as follows:

In a dispute to rename a child of divorced parents, the party seeking to alter the surname jointly given to the child at birth bears the burden of proving by a preponderance of the evidence that the change is in the child’s best interest. Irrespective of whether the parents were married at the time of the child’s birth, the best-interests-of-the-child test should be applied in a renaming dispute without a presumption in favor of the custodial parent’s decision to change the jointly given surname of the child.

Applying the best-interests-of-the-child test in the context of a dispute over whether to change a child’s name requires a fact-sensitive analysis. Each case should be weighed on its merits. Some factors to consider are: the length of time the child has used his or her given surname; identification of the child with a particular family unit; potential anxiety, embarrassment or discomfort that may result from having a different surname from that of the custodial parent; and the child’s preference if the child is mature enough to express it.

 

 

Divorce or Hit Man?

Divorce, for most people, is not an easy process.  Mediation does make the process easier.

However, a woman in Michigan (and a former NJ resident) decided that hiring a hit man to murder her husband was an easier way to resolve the issues she had with her husband.  According to an article in nj.com and video released by the Muskegon County Prosecutors Office, Julia Charlene Merfeld, 21, said to an undercover police officer: ” when I first decided to do this … it’s not that we weren’t getting along.  But … terrible as it sounds, it was easier than divorcing him.  You know, I didn’t have to worry about the judgment of my family, I didn’t have to worry about breaking his heart, all that stuff like this. It’s, like, how I got a clean getaway.”

She pleaded guilty to solicitation to murder on June 27. However, her husband and intended victim asked that she get no jail time at all.

Instead, Chief Muskegon County Circuit Judge William C. Marietti committed to cap her minimum sentence at six years. The maximum can be anything up to life in prison, depending on Marietti’s decision at Merfeld’s sentencing July 30.

I guess we can now use the tag line:  Divorce mediation — a better way to stay out of jail!

If you are interested in staying out of jail and mediating your divorce, please contact me.

Conservation of Energy in Conversation

Seth Godin has some sage advice today….

Conservation of energy in conversation

If you escalate (cut off in traffic, angry at the gate agent, frustrated at your boss), you’ve just added (negative) energy to a conversation.

If you escalate (high-pitched enthusiasm, a hug, encouraging words), you’ve just added (positive) energy to a conversation.

Once the energy is added, it has to go somewhere. Often, the person you’re engaging with throws it right back, or even increases it. A talented, mature person might take your negative energy and de-escalate it, or even swallow it and permit the conversation to calm down or end. But don’t count on it.

Sure, you can ‘win’ a conversation by overwhelming your opponent with energy they can’t handle. But of course, they’re not your opponent and you don’t really win. Being aware of the energy you add or take from interactions is a sophisticated technique that radically changes the outcomes of the conversations that fill your day. Add the good stuff, absorb the bad stuff and focus on the outcomes, not the bravado.