Divorce Different

by Jef Henninger, Esq. Serving all of New Jersey.

Archive for December, 2009

How divorce attorneys bill

Posted by jefhenninger on December 30, 2009

Many people come to me after being dissatisfied with the first attorney they chose.  Amazingly, many people have no idea how much money they spent with that attorney as they have not received any updates since the case started (probably one of the many reasons they are in my office).  I am also amazed by the amount of people that have no idea how attorneys bill.  Hopefully, this article will clear up the confusion.

No flat rates

In New Jersey, attorneys cannot charge flat rates for divorce cases (and related matters) because flat rates are non-refundable.  Instead, we set a retainer which is a fancy word for a credit that you have with that attorney’s office.  I tell all of my clients that the retainer is not an estimate.  So, just because I charge one retainer, do not expect that it will exceed it or that it won’t. 

Trust Accounts

Since your retainer is a credit, it is not spent until it is earned.  Thus, all of your initial retainer is put into a trust account.  It is then moved into the business account as it is used up.  At the end of the case, any money left in the trust account is returned to the client.   In New Jersey, it seems that most attorneys start divorce retainers at $5000.  At my firm, we start most retainers at well under $5000 and settle a majority of our cases for under $5,000.

Hourly Rates

Attorneys charge hourly rates for just about everything done on the case.  Hourly rates vary depending on location, experience and other factors.  In New Jersey, the average hourly rate for a divorce attorney is  about $350 an hour.  Time is billed in either tenths of an hour or quarter hours.  For example, a 2 minute phone call is billed at 0.1 while a 6 minute, 30 second call is billed at 0.2.  With quarter hour billing a 2 minute call or a 14 minute call is billed at 0.25.  My firm bills by tenths of an hour.

Assume that all time will be billed. This includes court time, phone calls, reading letters, typing letters, research, etc.  I know it sounds like a lot and it can add up quickly.  However, a good attorney can draw on past experience to get a lot done in a short amount of time.  That is how I am able to settle so many of my cases for under $5,000.

Monthly statements

At my firm, we send out monthly statements for just about every case each month along with a letter to let you know how much of your retainer is remaining.  Thus, my clients do not have to be in the dark with regard to how much their divorce is costing them.  I’ve heard clients tell me that their prior attorneys would never send them a bill until the end of the case when they were surprised with a huge bill that needed to be paid right away!

If you are ready to divorce different, call Jef Henninger, Esq today.  Jef can represent you in any court in New Jersey including New Brunswick, Somerville and Elizabeth.

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How to deal with your house

Posted by jefhenninger on December 30, 2009

In any divorce, the house is usually the largest asset that needs to be divided.  If the house was purchased during the marriage, then the available options are easy to identify.  If it is a pre-marital asset, it becomes much more complicated.  For purposes of this article, I will assume that the house was acquired during the marriage.  

There are going to be one of three scenarios with your house:  It either has equity,  it doesn’t or it has a little equity.  Equity is determined by taking the value of the house and subtracting the mortgage(s).  The value of the house is usually determined by an appraisal company.  They can run $250 to $500 and they value in quality and dependability.  Your attorney should have several that he or she relies upon.  Both sides usually chip in to get one appraisal although either side can get their own.

Scenario One – little equity in the house

There is equity and then there is equity.  If the value of the house is $310,000 and the balance of the mortgage is $300,000,  then there is little to no equity in the house as the sale price subtracted by real estate commissions and other expenses associated with the sale will eat up all of the equity in the house.  This is a complicated situation and your attorney will be in the best position to advise you on your options.  The bottom line is that each side does have equity in the house that should balance out somehow.

Scenario Two – equity in the house

If there is equity in the house, then the entire case should be a little easier.  You can either sell the house and split the proceeds or one side can buy out the other.  Again, your attorney should be able to guide you through this process.

Scenario Three – no equity in the house

This is tough.  Rarely does a couple owe the an amount that is the exact value of the house.  Instead, they are usually underwater which means that a sale of the house will leave the couple still owing money (this is called a short sale).  Clearly, selling the house will be a disaster.  In these situations, foreclosure and bankruptcy are considered.  The best thing to do is to work with both your attorney and your spouse’s attorney to brainstorm how this situation will be handled. 

If you are ready to divorce different, call Jef Henninger today.  Jef can represent you in your divorce case in any New Jersey Court including Mount Holly, Trenton and Camden.

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Divide small property on your own

Posted by jefhenninger on December 30, 2009

Thankfully, I rarely get involved in dividing furniture and silverware.  I say thankfully because it would be such a waste of my client’s time and money for me to get involved.  When it comes to house hold items, courts generally put a minimal value on everything.  Thus, you will most likely upset the judge by complaining about a division of furniture.  This could be tough because you probably paid good money for the items in your house.  As always, I suggest you discuss these issues with your divorce attorney but you should work out the division of most of the small items on your own. 

Here are some tips:

1.  First decide what belongs to you,  what belongs to your spouse and what belongs to you both of you.  Family heirlooms, pre-marital assets and hobby specific items such as golf clubs are usually pretty easy to decide.  If you are the husband, what are you really going to do with her craft supplies?  Likewise, as a wife, do you really want the neon NY Jets clock? 

2.  Now that there are three piles of items, create some lists and each spouse should have a copy.   Going forward, we are only talking about marital property since that is the only class of items that are in dispute.

3.  Is there anything that is truly personal to one of you even though it is technically a marital asset?  If your spouse really has an attachment to something, fighting with him/her over that item is not going to make things any easier.   Giving in a little could help  you in the long run.

4.  Examine the post-divorce living arrangements.  If you are both moving into a new place, you each need forks, plates, couches, etc.  However, if someone is moving in with a friend, family member or will otherwise have a furnished place, then those items are unnecessary.  Thus, the spouse moving into a furnished place may want to give up furnishings like couches and tables for more luxary items such as the big screen TV.

5.  Do not worry that the lists are not 100% even.  No one says it has to be.  You want to be comfortable and you should want your soon to be ex-spouse to be comfortable as well.  Even if you don’t care about your spouse’s comfort level at this point, remember that this is not a competition.

6.  Sell items on Craigslist.  Remember that if you are both moving out, you both have to get all of that stuff to two other places.  Are you really going to use all of it?  If neither of you are really fond of the sofa but it is in good condition, try putting it on Craigslist.  It will  cost you nothing and any sale will put money in both of your pockets.

7.  Reduce the final lists into an agreement and have both parties sign it.  While it doesn’t need to become a part of your property settlement agreement (PSA), you should still have some type of record as to  who got what.  If items are thrown out, include those too in another list. 

8.  Once the lists are drawn up, speak to your attorney again to see if he or she wants the lists to attach to the PSA or the divorce file. 

If you are ready to divorce different, call Jef Henninger today.  He can represent clients in any court in New Jersey including Essex, Hudson and Bergen County.

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Equitable Distribution in New Jersey

Posted by jefhenninger on December 30, 2009

Equitable distribution is division of marital property or assets. In order to divide the property, we first have to identify the assets, then we value them and then they are distributed.  In general, it doesn’t matter who purchased the asset or whose name it is under as New Jersey law recognizes the spouses as an “economic partnership.”   However, equitable distribution applies to all assets acquired during the marriage and not assets that were owned prior to the marriage. Assets subject to equitable distribution include real estate, jewelry, mutual funds, stock options, bank and brokerage accounts, retirement assets, small businesses, all the way down to plates and forks.  

N.J.S.A. 2A:34-23 (h) and N.J.S.A. 2A:34-23.1 are the two major statutes that govern equitable distribution.  Theses statutes list fifteen factors but allows the court to consider any other additional factors it may deem relevant:

  1. The duration of the marriage;
  2. The age and physical and emotional health of the parties;
  3. The income or property brought to the marriage by each party;
  4. The standard of living established during the marriage;
  5. Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution;
  6. The economic circumstances of each party at the time the division of property becomes effective;
  7. The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage;
  8. The contribution by each party to the education, training or earning power of the other;
  9. The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;
  10. The tax consequences of the proposed distribution to each party;
  11. The present value of the property;
  12. The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;
  13. The debts and liabilities of the parties;
  14. The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children;
  15. The extent to which a party deferred achieving their career goals.

When a court makes a ruling on equitable distribution, the court must make specific findings of fact based on the three step process that I outlined  above, i.e., (a) what assets are part of the marital estate; (b) what is the value of each asset; (c) the manner in which it should be distributed.  The value of each asset is determined at the date of the complaint and not the time that the ruling is made.

Except real estate and other major items, courts generally do not get involved in dividing furniture and other small items.

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Keep your emotions in check to keep legal fees down

Posted by jefhenninger on December 25, 2009

 Money hungry attorney love nothing more than an emotional divorce client with money. This is because when we are emotional, we do not think like normal, rationale people. Instead of worrying about what is best for your post-divorce life and/or what is best for your children, the fight between you and your spouse becomes paramount. As a result, you have your attorney fighting anything and everything.

For example, after a rather drawn out divorce case, I was walking into the court room to put through a settlement when the other attorney mentioned that she wanted my client to pay an additional $500 for something. This completely set off my client and he wanted to blow up the entire settlement. I had to talk him off the ledge so to speak to save the settlement because he was so furious. I told him that I refused to let him pay me thousands to fight over hundreds. That was about five years ago. Today, he still uses my firm.

I tell my clients that a divorce is like the dissolution of a business, especially when there is no issue with child custody. Thus, you have to decide what issues are truly important so that you can determine how you will spend your money and energy. Always remember that the more you fight, the more you pay. Don’t get me wrong, fighting is not a bad thing when the issue is truly important. But fighting over every little thing will send your legal fees through the roof. Thus, at the end of the case, what have you really won?

I advise my clients that it doesn’t matter that their spouse will get a little more. You don’t have to “win” or get back at them. The goal in a divorce case is to divide assets and liabilities in a fair way that allows you to start your new life in the best possible situation. If you spend a fortune on an attorney to fight over nonsense, then you will have less to start your post-divorce life with. Don’t get me wrong, there may be plenty of issues where you will have to spend a small fortune to get what you want. Whats important is that you make a truly rationale decision that the issue in dispute is worth your money and energy. Of course, it helps to have an attorney that will put your best interests over his or her financial interests.

If you are thinking about divorce in New Jersey and you are ready to divorce different, call me today.  I can represent you in any court in New Jersey including Ocean County, Monmouth County and Middlesex County.

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Links

Posted by jefhenninger on December 20, 2009

Check out our other websites at:

http://www.princetondivorceattorney.com

http://www.princetondivorcelawyer.com

http://www.newbrunswickdivorceattorney.com

http://www.tomsriverattorney.net

http://www.monmouthcountydivorceattorney.com

http://www.redbankdivorcelawyer.com

http://www.oceancountydivorceattorney.com

You can also check out these blogs:

http://www.thenextlevelblog.com

http://www.whitecollarcrimenews.com

http://www.njgunpermitattorney.com

http://jerseycriminaldefenseattorney.com

http://www.njchildsupportattorney.com

http://thenewjerseydwilawyer.com/

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The Case Information Statement

Posted by jefhenninger on December 17, 2009

The Case Information Statement is also known as a CIS. It is the most critical document in a divorce case. New Jersey Court Rule 5:5-2 requires that both parties file a CIS’ in just about  every divorce case (unless it is not contested or it does not involve any issues as to custody, support, alimony or equitable distribution).  

The CIS identifies all assets and liabilities of the party in addition to all income and all expenses under the broad categories of shelter, transportation and personal expenses.  In other words, a full and complete financial  picture of each party is shown to everyone involved in the case. This allows the attorneys and the Court to identify the assets and liabilities that may be at issue in the case. 

If done correctly, it should probably take several hours (if not days) to fill out.  Each party must file a CIS within 20 days after the filing of the answer or appearance.  The parties’ tax returns, their last three pay stubs, their pension statements, and their mutual fund and stock statements must be attached as exhibits to the CIS. This allows anyone

A CIS can be very complicated to fill out and it should be done with the assistance of a New Jersey divorce attorney.

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The Divorce Complaint

Posted by jefhenninger on December 17, 2009

In New Jersey, the filing of a divorce complaint starts the divorce case. A complaint for divorce is filed in the county court otherwise known as Superior Court.  You cannot just file divorce in any county. Your options are as  follows:

1. File in the county in which the plaintiff lived when the cause of action arose; or

2. If the plaintiff was not then living in New Jersey, the county in which the defendant was living when the cause of action arose; or

3. If neither party was living in New Jersey when the cause of action arose, then the complaint shall be filed in the county where the plaintiff presently resides; or

4. In the county where the defendant is living if the plaintiff no longer lives in the State.

The specific requirements regarding the content of the divorce complaint are found in New Jersey Court Rule 5:4-2.  Among other things, the divorce complaint requires a statement as to the essential facts which form the basis for the complaint for divorce (i.e. the cause of action), the addresses of the parties, and the address, date of birth, and information as to where and with whom the child resides (if there is a child).

As articulated in the causes of action article,  where adultery or deviant sexual conduct is alleged, the pleading must also name the adulterer or the correspondent. The complaint must also state the name of the person as the correspondent with whom such conduct was committed, if known, and if not known, shall state available information tending to describe the person, including details of the time, place and circumstances under which acts or series of acts were committed. 

Your attorney will draft everything for you so you do not have to worry about the exact format.  The person who files the complaint  is known as the Plaintiff.  The person who files the answer is known as the Defendant.  Unlike civil or criminal cases, either designation is mostly meaningless.

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