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5 TOP REASONS NOT TO MEDIATE DIVORCE

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What to Consider Before Opting to Mediate Divorce

While divorce mediation has significant benefits, it is not appropriate for every situation. There are numerous factors that must be considered before deciding to mediate divorce or opt for traditional litigation. It is important that you and your spouse both understand what mediation is and that neither party is being pressured into it.

mediate divorce

Waste of Time and Money

While mediation can be economical and time saving in many instances, it is not always so. If both parties are willing to cooperate with the process the outcome will likely be positive; however, if one or both spouses do not intend to be honest and open to compromise, it is likely to fail. Failed mediation means that litigated divorce is the next step. Both spouses must find their own attorneys (the mediation attorney cannot represent either party) and pay attorney and court fees associated with a new divorce proceeding. Information revealed during mediation may not be used in court, which means the discovery process must generally begin from the beginning. In addition, both parties are left with the bill from mediation and a loss of time.

Emotion

The dynamics of one failing marriage are never identical to another. Couples who plan to mediate divorce must consider their current and past personal relationship, and each spouse must consider their own emotions. While one couple may be amicable, agree to one another’s wishes completely, and have a minimal amount of negative, resentful, or sentimental emotion surrounding the divorce, another couple may find themselves too emotionally involved and angry to sit together through hours of mediation. Gauging where your relationship falls between these two ends of the spectrum will help you and your partner decide if mediation is right for you.

Power Imbalance

If one spouse is more articulate, has all the financial resources, or abusive to the other it can surely be detrimental to the divorce mediation process. For instance, in a marriage with a history of domestic violence mediation is likely not an appropriate choice as the victim may feel pressured or intimidated during sessions. Spouses who are victims, have fewer resources, or are inarticulate will usually have a more difficult time asserting themselves during mediation.

Court Procedure

The formality of the court in litigated divorce can be beneficial when it comes to power imbalances, truth, fairness, and evidence. Attorneys are able to use the court to have witnesses testify or produce evidence, while mediators cannot force the truth to be given by all parties. Court procedures also help ensure that both parties are treated fairly, whereas mediation is less able to help protect a party from an aggressive or intimidating spouse. This can play a crucial role in making sure the less aggressive spouse does not unfairly settle and lose what is rightfully theirs.

No Legal Advice

Even if a mediator is an attorney, they are not allowed to provide either side with legal advice. They are to act as a neutral party and are unable to speak to the parties about the divorce outside of mediation sessions.

Choosing to mediate divorce is a great alternative to litigation but it is not recommended in all cases.  Deciding whether to mediate or litigate may be decided early on, as early as the contemplation of divorce.  On the other hand, you may decide to mediate at any time during the litigation process. For instance, once a complaint is filed both parties could inform their attorneys that they wish to mediate.  Their attorneys could be present at the mediation sessions or they may mediate without attorneys. This option allows for the parties the benefit of being provided with legal advise during the mediation process through their individual attorneys.

Each case is significantly unique and an experienced mediator can help determine if mediation is appropriate.  At Armour Law Firm we recognize the importance of serving these diverse needs and provide mediation, collaborative divorce and  traditional litigated divorce services.

GETTING FAMILIAR WITH PRENUPS IN NJ

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What are Prenups in NJ?

A prenuptial agreement, also known as an antenuptial agreement or premarital agreement, is a written contract between two people planning to marry. It sets terms of possession of assets, management of future earnings, and control or division of property should a marriage end in divorce; however, it cannot adversely affect future child support.

Prenups in NJ go into effect immediately after a legal marriage takes place. It is possible to amend prenups in NJ after marriage; however, all of the changes to the initial agreement must be acknowledged and signed by both parties.

Although it is not required by NJ law, it is recommended that each party be represented by their own attorney to ensure their best interest.NJ prenups

Why is a Prenup Necessary?

Prenups in NJ are especially common when both or one party has substantial assets, high income, potential inheritances, children from a previous marriage, or a negative history regarding finances with a prior spouse.

Although prenups in NJ tend to have a negative connotation, they can actually serve to make a relationship stronger and open up a healthy financial dialogue. Many couples experience marital strife or divorce due to financial differences, but being open with one another from the engagement period may help avoid misunderstandings.

Prenups in NJ also help protect assets or property that has more than just monetary value. For example, an inherited family property may be of significant sentimental value to a person. Deciding what will happen with your spouse ahead of unforeseen circumstances will lead to a more fair settlement, as opposed to leaving such an important and sensitive matter for the courts to decide.

New Jersey Uniform Premarital Agreement Act

The Uniform Premarital Agreement Act was adopted by NJ in 1988 and outlines the requirements of prenups in NJ. In addition to definition and formalities it covers the contents and enforceability of a premarital agreement.

According to section 37:2-34, the contents of a prenup may include:

a. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

b. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

c. The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event;

d. The modification or elimination of spousal or one partner in a civil union couple support;

e. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

f. The ownership rights in and disposition of the death benefit from a life insurance policy;

g. The choice of law governing the construction of the agreement; and

h. Any other matter, including their personal rights and obligations, not in violation of public policy.

The Uniform Premarital Agreement Act also states that if a party alleges that an agreement should not be enforced, the burden of proof falls on them to show that one or more of the following from section 37:2-38 is present:

a. The party executed the agreement involuntarily; or

b. The agreement was unconscionable at the time enforcement was sought; or

c. That party, before execution of the agreement:

(1) Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;

(2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;

(3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or

(4) Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.

d. The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law.

In 2012, Governor Chris Christie strengthened the enforceability of premarital agreements by signing a law that amended N.J.S.A § 37:2-38 and N.J.S.A § 37:2-32. This removed a provision stating that prenups in NJ could be invalid if unconscionable at the time of enforcement, and left unenforceability to those agreements which were unconscionable at the time they were executed.
nj prenups

Considering a Prenup

Forbes.com contributor Jeff Landers provides an interesting perspective on prenups. He describes them as being very similar to wills in that they are carefully thought out documents centered on open communication. The estate of a person who passes away without a will is divided according to the government, not friends or family; should a marriage end in divorce without a prenup, assests and property are divided by the courts, not by the thoughtful agreement of both parties. In this way, a prenup, like a will, can help provide fairer distribution.

Contemplating a prenup can be intimidating, and broaching the subject with a future spouse during a time full of joy, excitement, and wedding planning can be very difficult. It is important to keep in mind that drafting a prenuptial agreement does not have to be a negative experience and it can be beneficial to both partners in the long run. While no one hopes for marriage to end in divorce, it can be in the best interest of both spouses to have control of their financial futures should it occur.