Divorce & Family Law Insights

No one goes into a marriage expecting to be divorced, but when a family makes that tough decision, the last thing you want is for your children to be caught in the crossfire.

Nicole A. Kobis, Esq., partner in Lindabury’s Divorce and Family Law Practice Group, discusses the challenges of Divorce & Your Children as a featured guest on RVN Television’s Legal Breakdown, with host Erin Brueche.

Births, deaths, marriages and divorces reshape the definition of “family” for individuals on a constant basis. It’s no wonder, then, that family law and estate planning often go hand in hand. Estate planners and divorce attorneys alike are often presented with “what if” questions that span both areas of law. Here, we explore a few common questions clients may have when faced with these life transitions. The goal of this article, is to help clients make decisions that protect their loved ones and their assets.

Changing a Will

Can I change my will while getting divorced and should I? Although the last thing that many clients want to do once the divorce action has begun is to engage another attorney, it’s actually a good idea for them to review their estate plan this time.

While divorce looks different for every client – some saddened, some shocked, some happy to move on – a common emotion surrounding divorce is nervousness. For many, divorce may be the first time a person has prolonged involvement with the Court system. Understanding the Court System’s divorce process can help lessen anxiety and fear surrounding the divorce process.

Initiation. The first step in any divorce proceeding is the Complaint for Divorce. The Complaint essentially informs the Court of the general facts of your case and is the formal notice to the Court and your spouse that you are seeking a divorce. Your spouse will then have the chance to file an “Answer” to your Complaint.

Financial Paperwork. Generally, both parties to the case will individually file a “Case Information Statement”, which summarizes income and spending of the parties. It will also list any assets or debts that you have. This gives the Court an overview of your financial situation.

Divorce inevitably results in a major life transition for all parties involved. Whether or not both spouses wish to end their marriage, divorce presents changes in family structure, time spent with children and financial resources. During a divorce, decisions need to be made about the most precious and important aspects of an individual’s life while they navigate the intense emotional effects of materially altering the way they may have envisioned their future. In order to protect yourself during a divorce, I advise my clients that the best way to make those decisions is to arm themselves with information so that they become informed consumers. I ask them to gather their financial information, including account statements and tax returns, think about what they want as they transition to life after divorce and what matters most to them as we begin to discuss the issues associated with dissolving their marriage. There are terms that are foreign, processes that are new and decisions that once made can change their lives forever.

The divorce process in New Jersey is focused on settlement- keeping as much control as possible with the spouses themselves who arguably know what is best for themselves, their children and their families. Many litigants turn to alternate dispute resolution means, such as mediation or collaborative divorce, to resolve the issues associated with dissolving their marriage. These processes allow for more creativity in settlement and more communication about the specifics of each issue. In cases that involve more complexity or discord, parent coordinators who help facilitate decisions regarding the children are brought in to manage parents even after the divorce has ended.

While divorce does create change, that change does not have to be for the worse. Surrounding yourself with trained professionals who can help navigate the process, the court system and help educate you while you move through the divorce will help ensure a smoother transition into the next chapter.

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Births, deaths, marriages, and divorces reshape the definition of family for individuals on a constant basis. It’s no wonder, then, that family law and estate planning often go hand in hand. Estate planners and divorce attorneys alike are often presented with “what if” questions that span both areas of law. Here, a few common questions are explored which can help guide people faced with these life transitions as they make decisions to protect their spouses, children, and assets.

Can I change my Will while I’m getting divorced? Should I?

Although the last thing that many people want to do once the divorce action has begun is engage another attorney, it is actually a good idea to revisit your estate plan at this time. Public policy prohibits disinheriting your spouse, so a spouse who is not named in the other’s Will could file a claim for the “spousal elective share” to receive a portion of the deceased spouse’s estate. The filing of a divorce complaint does not prevent a soon-to-be former spouse from inheriting an equitable share of marital assets. The New Jersey Supreme Court has analyzed what should happen in this situation and applied a remedy which does not allow the surviving spouse a windfall, but at the same time recognizes that at the time of the death, the parties were in fact still married.[1]

It is not uncommon in these difficult times for one ex-spouse to seek a modification of the divorce decree.  COVID has caused changes in everyone’s life. A party may have lost income or even their job and seek to decrease alimony and child support. Or concerns over the safety of unvaccinated children or the failure of an ex-spouse to receive a vaccination may lead a party to seek to modify visitation.

Litigation over these issues was already time consuming before the pandemic caused a backlog of matters before the courts.  You and your family may be better served by bringing your issues to mediation with a retired judge. During my 27 years on the bench I served 6 years as the Family Presiding Judge where I tried hundreds of cases and assisted in the settlement of many more. These cases involved alimony, child support, equitable distribution and custody. I also ruled on hundreds of post judgment applications. I believe my experience can be beneficial to ex-spouses who wish to reach a mutual resolution of their family law issues in a timely manner.

Nicole Kobis, Partner in Lindabury’s Divorce & Family Law group, recently contributed an article to Above The Law on the challenges of being a sympathetic divorce lawyer.

The task of the compassionate divorce lawyer is not easy: it requires balancing sympathy and acknowledgment of the emotional turmoil occurring in my clients’ lives while at the same time ensuring that they understand the boundaries of the law. I work even harder now to make sure that when a client leaves my office, they know that divorce is not the end of their lives. Instead, I help them finish one chapter and immediately turn the page to begin a new chapter which though different, could be even better than the one before.

You can read Nicole’s entire article here.

To the owners of family businesses, estate planning can sometimes be an after-thought. Owners are often so involved in building their business and managing its daily operations that they do not have time to devote to the planning that will become important when the owner is ready to hand over management control and ownership to successors. It is often the case with successful family businesses that there has been little or no thought given to the transition of management and ownership, with the result being there is no succession plan in place. Further, available strategies to transfer the ownership of the business to younger generations of the family in a tax-effective manner may not have been utilized.

When a family business is one of the assets, or perhaps the primary asset, a well thought out strategic and financial plan for the business and an estate plan for the family are critically important. The following is a brief and by no means exhaustive outline of some points to consider.

Strategic Planning

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Probate disputes often reflect the worst aspects of family law coupled with issues of undue influence.

At the time of a will probate dispute the court system is seeing the litigants at a trying period in their lives. They have lost a loved one and tensions are running high as to the actual intent of the deceased person. While the parties may be furious with one another, there is always the hope that some degree of familial ties can be preserved. Mediation is uniquely suited to resolve these tensions. The litigants can tell their sides of the story to the mediator, who has the time to listen. In my experience, it is very important for all litigants to feel as if their side of the dispute has been properly told. It is after this emotionally draining experience that they are ready to find common ground and solutions to the problems presented.

Challenges frequently arise when all heirs are not treated equally. One child may feel they had the burden of caring for the aging parent and should be compensated. A variation of this story arises when the elderly parent has given a power of attorney to only one family member. After death disputes arise as to assets that may have been spent by the child with the power of attorney. Rarely have receipts been saved, and frequently large amounts of cash have been paid to home health aide. Expensive litigation and a trial will only serve to reduce the assets. A mediator can help the parties narrow their actual disputes and discuss the cost of proving the righteousness of a position. The insight of a neutral third party is invaluable.

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