Until 1990, when a Minneapolis family lawyer decided he had had enough, ending a marriage often involved a bitter, soul-rending bloodbath known as divorce by trial. There were alternatives — settlement, mediation — but litigated divorce cases far outweighed them, and even these alternatives did not preclude a divorce from going to trial.
The birth of collaborative law and dispute resolution offered a chance for couples to close out their union without leaving anyone — including their children and their attorneys — buried under a pile of smoking rubble.
In March the collaborative model came to Mercer, Middlesex, and Somerset counties in the guise of the Mid-Jersey Collaborative Law Alliance. With no formal address, the alliance is a collection of lawyers, financial professionals, and mental health practitioners who hope to provide a better way to conduct divorce.
It was founded by Lawrenceville attorney Frances Merritt and five other legal pros who, like their Minneapolis forefather, decided they had had enough of divorce by trial.
The original six are Merritt, attorneys Risa Kleiner, Kleiner Law, 116 Village Boulevard; Cheryl Spilka, Ramatowski, Spilka & Schwartz, of East Brunswick; and Mia Cahill of Dennigan Cahill, 116 Village Boulevard; and financial professionals Barbara Clarke of Morgan Stanley Smith Barney, 997 Lenox Drive; and Jeffrey Urbach of Highland Park. Seven months after forming the alliance there are more than 30 professionals in the MJCLA.
The approach of collaborative law is simple — the two parties agree to settle their situation out of court, with full cooperation and disclosure, in good faith. There are still attorneys, of course, but these are not of the toothy, bottom-feeding kind. They are rather attorneys who, while representing their own clients, confer with the other party and seek to make the end of a marriage a transition, rather than a bomb blast.
Unlike traditional divorce, the husband and wife using the collaborative process actually get in the same room, attorneys present, and work through the details in a civilized way. Traditionally, divorcing parties speak through their attorneys who, in vigorous defense of their clients, create demands that foster adversarial relationships. In collaborative divorce, attorneys and clients set goals and discuss ways to achieve them.
One of the major tenets of collaborative law is that once you hire its practitioners you are not allowed to move to trial with them. If you want to move out of collaboration, you can, you will just need to hire a new lawyer and a new set of professionals.
This aspect of the process was made possible by a 2005 opinion by the state Supreme Court Committee on Attorney Ethics.
Attorneys are barred from from “forming partnerships with non-lawyers if the activities of the partnership consist of the practice of law,” says Merritt. Therefore, there needed to be an opinion as to whether the collaborative groups, which are multi-disciplinary by definition, could be seen as “reasonable” under the rules of professional conduct.”
The opinion found that the limitation of the lawyer’s representation of a client to out-of-court settlement was acceptable, so long as up front there is full disclosure to the client that should the collaborative process fail, all collaborative professionals, including the attorneys, must withdraw and the client must seek litigation counsel who would represent them in court, Merritt says.
The committee also determined that, because each professional has a separate agreement with the clients to any collaborative divorce matter, the membership of different professions in the same association “did not constitute the unacceptable practice of law with non-lawyers.”
If the process of collaborative divorce sounds like divorce mediation, that’s because it is a similar animal.
Mediation, however, does not require an attorney at all. Hanan Isaacs, a 30-year veteran of civil and family law, including mediation, based at Princeton Professional Park, explains that the job of a mediator is to guide two parties through a situation. Should the mediator assess that the two parties are not capable of settling without the help of an attorney or other professional, then a professional will be called in.
Collaborative law maintains the two-attorney system, which Isaacs says does not break the adversarial model of the legal system as much as it wants people to think it does. Isaacs does a lot of mediation and says that his issue with collaborative law itself is that, given its directive to drop the case should a divorce turn to litigation, a collaborative divorce essentially becomes mediated if the attorneys hit an impasse and have to call in a financial or mental health expert.
Isaacs says he considers himself collaborative but is not a collaborative attorney proper. He does not like the idea that attorneys must bail out of a case if it goes to trial. He tells of a case he had in which all things were mediated until it was time to sign the deal. The other side’s party said no and wanted more, and the case had to be moved to litigation. Had it been in a collaborative arrangement, he says, he would have to have abandoned his client, who would not be happy starting over again with a new lawyer.
Collaborative lawyers contend that mediation works best when both parties begin on a level playing field.But if, for example, the husband has a lot of financial acumen and the wife has been kept in the dark, the couple does not start out on level ground.
Merritt says mediation, despite its best intentions, can give the upper hand to the already upper-handed. The one with financial knowledge suggests mediation as a friendlier way to dissolve a marriage, but really it is a way to skip through the process without tipping a hand toward what assets exist.
Collaborative law looks to level the field for anyone not up to speed with their estranged mates. In many cases of a break-up, one partner has a far greater understanding of money and finance; and, often, one partner is further along emotionally, having initiated the process and blindsiding the other. If a disparity exists in a collaborative divorce, financial or mental health professionals, also members of the alliance, are invited.
The addition of financial and mental health professionals to the process is the latest step in collaborative law’s evolution. These professionals are often present when a meeting between the divorcing parties and their attorneys — often referred to as a four-way conference — takes place. They exist to educate both sides about what financial resources are available — stocks, pensions, investments, real estate — or what steps need to be taken to ensure that children are not damaged by lingering animosity between their parents.
MJCLA clients select their attorneys from the pool of qualified collaborative practitioners and sign agreements not to take their situation to court. When a financial or emotional issue is deemed in need of other advice, a professional is called in.
A final distinct advantage of collaborative divorce is the price tag. Litigated divorces can cost $20,000 to $30,000 for a fairly standard proceeding. That factor itself often keeps people from getting divorced because they simply cannot afford it. Collaborative divorces cost significantly less, often less than $10,000.
Mid-Jersey Collaborative Law Alliance. Frances Merritt, president. Home page: www.mid-jerseycollaborativelawalliance.org.
A professional life drenched in venom burns out a good many divorce lawyers, and Frances Merritt was on course to be another victim. When she started her law career in 1986 she was pushed reluctantly into family law and stayed there just as reluctantly, even as it developed into her specialty.
Like most attorneys at the time, Merritt had never heard of collaborative law. In fact, it took until 1995 before she had even heard of mediation, an older but still relatively new concept in divorce in which a neutral party mediates a settlement for both sides. When she finally did learn about mediation, Merritt says, “It was my first lifeline.”
Beginning in 1995 Merritt undertook a year-long certification program in mediation through Rutgers. Two years later she attended another year-long certificate program in mediation and dispute resolution at Woodbury College in Vermont.
With hundreds of mediated divorces under her belt, Merritt left the corporate law world and opened her own firm from her home on Stonicker Drive in Lawrenceville in 2001.
Her second lifeline would come in 2004, when a New York lawyer told her of the collaborative law process — a more team-oriented approach to divorce in which everyone involved discusses how best to settle. Her reaction to lifeline number two: “Why did it take someone so long to come up with this? And why didn’t I come up with it?”
Though she maintains her mediation practice, Merritt is more hopeful about collaborative law. For the first time since she entered the field, she says, she can look at her future and see herself doing it for the rest of her life.
“What I love about this practice is that it’s not just trying to get a resolution,” Merritt says. “A primary goal is to either not kill communication or even restore it.”
In February she pieced together the idea for a group of collaborative law professionals, then co-founded the Mid-Jersey Collaborative Law Alliance in March. The goal of the alliance is identical to that of her own practice: to provide a situation in which the unpleasant can be settled with dignity and respect.
Merritt says this is achieved by modeling. Collaborative attorneys act the way they believe parties in a divorce should behave — with a civil tongue, by collaborating in figuring out the goals in a settlement and how to achieve them, and by not fostering adversarial tensions.
Merritt’s insight comes from the many divorces she has been through, including her own — one engaged long before she knew of collaboration and mediation. What had started as amicable, she says, got ugly, but only after the lawyers got involved. “I wish it had been available,” she says of the collaborative process. “There is no question we would have done it.”
She is not against other lawyers, she is against the system’s inherently conflict-centered approach. “Most of my litigating colleagues have very good hearts,” she says. “But the culture makes it difficult on them.”
The MJCLA has grown from six to more than 30 in half a year, and Merritt expects the alliance to follow the lead of the Jersey Shore Collaborative Law Group, which was founded in 2005 with 12 members and today has more than 100 and “more work than they can handle,” she says.
Collaborative has a staggering success rate — roughly 90 percent of collaborative divorce settlements stay settled, compared to the 60 percent of trial divorces that end with the gavel, meaning 40 percent come back to court in short order. Also, 97 percent of cases that begin in collaboration stay there.
But it does lose a few. MJCLA doesn’t follow the ones it loses to trial, though. Clients sign a deal to not go to litigation once they have hired MJCLA members. If they change their minds, they will lose the members’ services and have to start over without their help.
And, there are situations when collaboration is not an option. State law forbids couples involved in a domestic violence situation from entering mediation or collaborative resolution — mainly because if there is a restraining order, the people involved with it are not allowed to be in the same room together. Also, unless both parties can willingly approach the table, neither mediation nor collaboration will work.
Having done mediation, Merritt knows that some people are simply trying to skirt the legal process, but have no intention of playing fairly. And she has no patience for games. “If I smell a ‘strategy,’” she says, “I’ll tell them I don’t think I’m their lawyer.”
Her home office, painted in soft shades of peach-pink, has a cozy, professional charm and a view of the yard meant to instill a sense of peace. Clients and their attorneys make their own schedule and do not meet unless all can make it. If another professional is needed — say a financial pro to explain what the assets are — they are suggested by both attorneys and brought in at the discretion of the clients. “We don’t foist team members on anyone,” she says. “All parties talk it over and as a team get it going.”
And when it comes to the kids, there is no using them as pawns. “I want the kids to know both parents and know they’re loved,” she says.
Traditional divorce is unkind to children. Even post-judgment, Merritt says, “when you finally think it’s over,” one of the divorced parties comes back with more demands because the settlement didn’t sit well with them. “They say ‘I’m doing this for the children,’” she says with a hint of disgust. “They’re not. They’re doing it to get at the other side.”
Merritt is not the usual divorce lawyer and her route to the legal profession is not that common either. She earned her bachelor’s in psychology from Rutgers, then a masters in music (voice performance) from Westminster Choir College. She pursued a musical career as a solo voice performer and teacher of classical voice and voice pedagogy at Westminster until she entered Rutgers Law School in 1983.
“There came a time when I knew I would be depending on my own little self for my keep which was — and maybe still is — tough to do on a voice teacher and performer’s income,” she says. “At the ripe old age of 39 I went to law school and here I am.”
During her years in law, Merritt has given at least three recitals and would like to do one more, but it is a demanding endeavor. “I miss the singing,” the high soprano says. “But I think my brain is likely to last longer than my voice anyway.”
She began her law career as clerk to Paul G. Levy in Mercer County Superior Court before moving on to Katzenbach, Gildea and Rudner in Lawrenceville, then Wills, O’Neill and Mellk in Princeton. Her last job in a law firm other than her own was with Stark and Stark.
Merritt was trained in collaborative practice in 2008 and is a member of the International Academy of Collaborative Professionals (www.collaborativepractice.com).
Like Barbara Clarke, one of MJCLA’s financial professionals, Merritt sees the future of divorce shifting toward the collaborative process. There will always be those who mediate and there will always be those who try to tear each other apart, she says. But most people will, she believes, engage in collaborative law’s civilized approach.
So long as they know it exists as an option.
Frances M. Merritt, Attorney/Mediator, 40 Stonicker Drive, Lawrenceville 08648; 609-895-1717; fax, 609-895-1727. www.francesmerritt.com .
The process of divorce often exposes a disparity in financial knowledge. Traditionally, it is the husband who understands the couple’s assets and how to manage them, but not always.
And, as ironic as it might seem, the more assets a couple has, the more likely it is that a knowledge gap will exist. “Things get complex when it comes to benefits, stock options, and employee stock purchases,” says Barbara Clarke, a certified financial planner with Morgan Stanley Smith Barney on Lenox Drive.
Clarke, who also is a certified divorce financial analyst, is a founding member of the Mid-Jersey Collaborative Law Alliance, its board advisor, and one of the financial professionals the alliance can call in to help a divorce team understand what is at stake when a couple is faced with divvying its assets.
The first thing everyone should know is how the dividing of assets affects the kids. Divorce, says Clarke, is not “just about the equitable distribution of wealth between husband and wife. Kids have a marital asset too, and that’s the good will between mom and dad.”
While many couples approach divorce hoping to settle things in a non-combative way, questions and confusion over shares of the wealth can create ample friction. As that friction builds in a traditional divorce, kids are too often faced with a set of parents who are not just fighting, but are using their children as reasons to demand or refuse compensation.
As skilled as attorneys might be, Clarke says, they do not know all things financial and can often benefit from an investment professional’s expertise when it comes to the clients’ portfolio. Without a financial pro to help untangle the knots, divorces can quickly become bitterly contested or patently unfair. There are two types of financial professionals — neutrals, who typically show up in mediated divorces, and advocates.
Clarke is the latter. Specifically, she is brought into a collaborative divorce to educate and inform the non-financially dominant spouse about the nature of the marital assets, and guide him or her toward a workable plan to achieve their goals.
A 26-year veteran of the financial profession, Clarke worked for Merril Lynch for 20 years. She came to realize that it is not uncommon for one spouse to know almost everything and the other almost nothing about the finances. About six years ago Clarke started providing financial guidance to the less knowledgeable spouse in order to offset the “complete and total disadvantage” she often encountered in divorcing couples.
Clarke herself has been married for 25 years to architect T. Jeffery Clarke, who has his own firm in Princeton and is vice president of the Historical Society of Princeton. Her soft spot for the underdog can be traced at least back to her college days at Rutgers, from which she earned her bachelor’s in 1981. While in college she founded the Rutgers Women’s Rugby Club, largely because she liked rugby and “didn’t know women weren’t supposed to be able to play the same sports as men.”
Her soft spot for finances might have come from her father, who was a CFO in a number of prominent companies and, at the time the youngest executive vice president of any company ever listed on the NYSE. “He was a whistle-blower before there even was a name for it, and built his reputation on his rock-solid integrity and the courage of his convictions,” Clarke says. “He passed away two years ago, and he continues to inspire me in the work that I do every single day.”
Clarke’s mother was a homemaker who still lives in Princeton. She has a daughter who has an interest in finance, but is planning to attend law school in Washington, D.C. “She has interned for the ACLU in Detroit, and is currently interning with Global Zero, assisting in efforts to seek the peace and security of a world without nuclear weapons,” Clarke says. “Since collaborative law is characterized by ‘disarmament,’ I guess you could say that she is following in my footsteps after all.”
Clarke sees the MJCLA as the keystone in the future of divorce settlement. “Collaborative law is to divorce what going green is to energy,” she says. “People are hungry for this.” Society, she says, has grown weary of the behavior fostered by traditional divorce through litigation, and she expects more people to say, “I’m not going to live that way.”
She adds, “Even in divorce, there is an opportunity for people to grow.”
Morgan Stanley Smith Barney, 997 Lenox Drive, Lawrenceville 08648; 609-538-4800; fax, 609-896-4178. Barbara J. Clarke, CFP, CIMA, CDFA. www.smithbarney.com.
Mental Health Expert
In large measure, divorce is about distribution — who gets what, and how much of it.
What sounds straightforward is anything but, of course, especially since distribution includes more than just finances. There are often those little things called children.
Robert Karlin, a member of the Mid-Jersey Collaborative Law Alliance and professor of psychology and psychotherapy at Rutgers in New Brunswick, does not work with kids, but as a mental health professional in the MJCLA arsenal he knows how easily (and often) they are hurt when parents go through a litigated divorce.
“The first thing to know when you get divorced is not to get the kids on your side,” Karlin says. “If they’re on your side you’re in trouble. Kids need both parents, except, of course, in cases of violence and abuse.”
Not one to hides his distaste for litigation, Karlin says, “The preparation for trial makes enemies. It’s a stupid way to get divorced.”
Better is mediation, which offers a more civil dialogue between dissolving couples, and which Karlin has been doing for several years. When a couple hits an impasse in divorce talks, Karlin comes in to help guide people through the complex emotional situations the process creates. And his number one goal is to guide people through in such a way that the children are not damaged by the process.
In mediated, collaborative, and litigated divorces, experts can be called in for testimony. Karlin has never provided psychological testimony for a divorce, but says the profession has its share of those who have. And while “there are whores in every field,” Karlin says the objective of the psychologist in a divorce trial is objectivity, an attempt to assess which environment is best for the children.
Psychologically speaking, the number one problem with a traditional divorce is that a settlement imposed by a judge doesn’t feel fair to one or both parties. These settlements, he says, are often boilerplate deals that at “hammered out over the garbage can outside the courthouse.”
Karlin uses the phrase “feels fair” often. When deals are hammered out by attorneys with no true personal stake in the family setup, he says, they carve up assets and custody time in impersonal ways — dad gets the kids every weekend, mom gets the house, dad gets 70 percent of his pension. Almost inevitably, he says, the distribution of everything that made a marriage in unsatisfactory to one or both parties. This accounts for why more than 40 percent of marriages settled by a divorce trial return to court for retooling within a few years.
And the animosity builds right along with it.
A major issue, Karlin says, is that divorce explodes the myth that only the children’s welfare matters. Adults quickly realize that not only is the children’s welfare contingent on that of the parents, their own welfare is contingent on whether there is enough wealth to divide that will maintain a decent living conditions.
Even when there are no kids involved, the distribution of assets exacts a heavy psychological toll. The only way for a couple, once separated, to vent their anger is financially. If a settlement does not feel fair to either party, trouble will rise again.
What also does not usually feel fair is the act of filing for divorce. “It takes two to make a marriage but only one to make a divorce,” Karlin says. In the majority of cases, the process is initiated by one spouse who is much further along psychologically.
Let’s say it’s the wife. She already has considered getting out, has calculated the problems with life after marriage, and might even have a course of action set up so that when she says “I want a divorce,” she already has one foot out the door. The husband, conversely, is taken off-guard. Hurt. Angry.
Karlin enters mediation and collaborative situations to balance the emotions. Both styles, he says, are infinitely preferable to the standard divorce, but neither will work if both parties are unable to communicate. “If you can cooperate despite your anger, you can reach a customized solution that feels fair,” he says.
This must be achieved by understanding the right kind of distributive justice, Karlin says. There are three kinds — the contributor’s share model, which posits that the largest contributor to the assets gets the largest hunk of them; the family model, which posits “he who needs most gets most”; and the friend model, in which everything is split 50/50.
The best approach is somewhere between the first two, Karlin says. Something that acknowledges the contributor and makes certain the children are appropriately cared for.
Sometimes a fair deal involves continuing contributions, or help rendered when help is needed. His own divorce offers an example. Karlin and his wife entered mediated divorce in Florida in the 1990s. He says the mediator was “blindingly incompetent” and helped little. At the end the divorce cost $40,000, and his ex-wife was hit with a bill for $10,000. “Her attorney was going to sue me,” he says. “I called him and asked, ‘How much will it take to settle this now?’”
“Lawyers have to assume you’re a liar and a cheat,” he says. “But even when you’re hostile you can negotiate personally, especially for the good of the kids.”
Karlin also offers a piece of advice he took from a man he met on a plane while flying to see his own kids. “The guy said, ‘Put aside $5,000 a year and send it to the kids.’ So I did,” he says. “And it worked.”
Karlin is not a founding member of the MJCLA, but he is the first mental health professional the alliance listed among its members. He remains an avid supporter of mediation, but sees collaborative law as a promising avenue. So long as the process does not foster enemies, he says, he is behind the method.
Though he is a strong voice for the fair treatment of children in a divorce, Karlin professionally deals with no children. He mainly teaches psychotherapy to graduate students at Rutgers and in his private practice deals only with adults. After earning his bachelor’s and master’s in psychology from Yale, Karlin stayed there to study for his Ph.D. with professor Arnie Lazarus. He followed Lazarus to Rutgers and finished his Ph.D. under him in 1974. He has been on the faculty there ever since.
Karlin did not follow his father into police work any more than his two daughters have followed him into psychology, he says. He entered mediation after his own divorce, believing the field needed better people than the mediator he had. He got involved with the MJCLA over the summer.
While he has high hopes for the possibilities of collaborative law and mediation, Karlin says he dreads its obscurity. Even longtime mediation professionals and attorneys do not know collaborative law exists, much less people who would use the method. “People don’t go to mediation or collaborative law because they just don’t know about it,” he says. “We should be on the rooftops shouting ‘Mediation! Mediation!’”
Alternative Divorce Mediation of Princeton, 330 North Harrison Street, Suite 6, Princeton 08540; 609-924-1710; fax, 609-275-4679. Robert A. Karlin PhD. www.divorcemediatorsnj.com.
Others in the MJCLA: Attorneys
Kimberly Almasy LaMountain, Almasy & Almasy, 429 Amboy Avenue, Woodbridge, 07095; 732-326-1200; k.lamoutain@ att.net; http://almasylawyers.com.
Michael Lento, Daniel J. Graziano & Associates, 3685 Quakerbridge Road, Hamilton, 08619; 609-890-0400; www. djglawyers.com.
Gabrielle Strich, 4105 Route 1 South, Monmouth Junction; 732-438-3880; www.strichlaw.com.
Jane R. Altman, Altman, Legband & Mayrides, 37 Tamarack Circle, Skillman, 08558; 609-921-8070; www.almfamily law.com.
Mia Cahill, Dennigan Cahill, 116 Village Blvd, Suite 307 Princeton, 08540; 609-919-1600; email@example.com; www.dennigancahilllaw.com.
Murray Gendzel, 1542 Kuser Road, Suite B4, Trenton, 08619; 609-585-1010; murraygend@ aol.com; www.mgatlaw.com.
Risa A. Kleiner, 116 Village Boulevard, Suite 200, Princeton, 08540; 609-951-2222; firstname.lastname@example.org; www.rkleinerlaw.com.
Donna Legband, Altman, Legband & Mayrides; 908-359-4011; www.almfamilylaw.com.
Suzanne M. Lyte, Lyte & Associates, 1550 Park Avenue, Suite 201 South Plainfield, 07080; 908-753-0444; email@example.com; www.lytelaw.com.
Jean Ramatowski, Ramatowski, Spilka & Schwartz, 758 Route 18, Suite 105, East Brunswick, 08816; 732-613-8300; firstname.lastname@example.org; www.eastbrunswickfamilylaw.com.
Louise M. Robichaud, 4585 Route 27, Box 166, Kingston, 08528; 609-924-9699; email@example.com.
Cheryl M. Spilka, Ramatowski, Spilka & Schwartz, 758 Route 18, Suite 105, East Brunswick, 08816; 732-613-8300; www.eastbrunswickfamilylaw.com/
Leanne Pike Treese, Roselli Griegel, 1337 State Highway 33, Hamilton Square, 08690; 609-586-2257; firstname.lastname@example.org.
Kathryn Trenner, 245 Nassau Street, Princeton; 609-921-2158; kathryntrenner@verizon. net
Robert M. Zaleski, Paone & Zaleski, 146 Green Street, Woodbridge, 07095; 732-750-9797; www.paone-zaleski.com.
Thomas Hoberman, Withum Smith+ Brown, 5 Vaughn Drive, Princeton; 609-520-1188; email@example.com.
Jeffrey Urbach, CFE, CVA, CPA/ABV/CFF, Urbach & Avraham, 1001 Raritan Avenue, Highland Park; 732-777-1158; www.uandacpas.com
Michael Libertazzo, 112 Rollingmead Street, Princeton, 08540; 609-921-6264.