Privacy and Confidentiality

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As a lover of all things Coldplay, I was sad to hear that lead singer Chris Martin and his wife of more than 10 years, Gwyneth Paltrow, were divorcing. Gwyneth Paltrow announced the separation on her website Goop.com and used the term “conscious uncoupling” to describe their approach to divorce.  Although the term had been originally coined by marriage and family therapist, Katherine Woodward Thomas, as with anything else endorsed by celebrities, the phrase went viral after her post.  It was of particular interest to me personally given my chosen profession as a divorce lawyer.

As professionals, especially ones whose practice is client-centric, we are always striving for better ways to do our jobs.  In my case, that means getting clients their desired result in the most effective and streamlined way possible. After practicing for several years, experience has shown me time and time again, that people going through divorce are most satisfied with the process when they feel they have control over it (i.e., are “conscious[ly] uncoupling”) and can proceed with a form of alternative dispute resolution (such as mediation) rather than traditional, costly, protracted litigation.

Even as American culture has become more progressive and accepting, divorce is still considered taboo and is almost always surrounded by extreme negativity and hostility.  Even if the couple themselves wants to proceed amicably, they are unfortunately often allowing others in their life (parents, siblings, friends, new boyfriend or girlfriend) to control the dialogue and encourage them to dig in their heels.

Once people “dig in”, it is often impossible to “dig out”.  Protracted litigation only intensifies negativity and hostility. The idea that divorce has to be a negative experience then becomes a self-fulfilling prophecy, in which divorcing parties behavior, is influenced by their expectation that divorce must be awful.  I believe if you change the conversation surrounding divorce and allow yourself to “consciously uncouple” you will have much more satisfying experience surrounding your divorce.

I recently completed a 40-hour divorce mediation training program. This program has only solidified my beliefs that in many cases, a mediated divorce, is a better divorce. That is not to say that litigation is never necessary. There are some circumstances that cannot be mediated and some people that simply cannot effectively participate in mediation. That said though, divorce is multi-dimensional: it is legal, it is financial, and it is emotional. The great thing about mediation is that it can effectively address each of those dimensions.

(1) LEGALLY

Whether you litigate or mediate, you achieve the same end result: a legal divorce.  A mediated divorce however is often faster, less adversarial and provides more flexible and creative resolutions, narrowly tailored to your specific family dynamic.  It also allows for a more confidential process than airing out your dirty laundry in a series of public court filings and appearances.

(2) FINANCIALLY

I will never say “always” or “never” because I’ve come to learn that nothing is absolute.  A mediated divorce however, can certainly be more cost effective. Spending less to uncouple leaves more to be divided between the parties and therefore places both parties in a better position to maintain financial independence and stability post-divorce.

(3) EMOTIONALLY

Although emotions can run high during mediation, there is a much more focused approach on compromise and collaboration rather than “winning” as is seen in litigation. When people feel their spouse is negotiating in good faith and trying to be part of the solution, rather than part of the problem (i.e., zealously litigating over the smallest of disputes), they walk away feeling better about uncoupling, which leads to healthier relationships with themselves, their ex-spouse, and future romantic partners.

The takeaway from all of this is that choosing to uncouple, does not always have to be adversarial, financially draining and emotionally damaging. Take control of your divorce and find avenues in which to minimize the long-term effects.  Before deciding to wage war against your spouse, consult with an experienced and trained family law mediator to see how mediation can work for you.

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Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time.  Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

My colleagues Michael Kline and Elizabeth Litten recently co-wrote a series of blog posts for the firm’s HIPAA, HITECH and HIT blog containing valuable information for individuals either undergoing divorce proceedings or navigating other domestic relations issues.

Copyright: / 123RF Stock Photo
Copyright: / 123RF Stock Photo

In their series, Michael and Elizabeth explore complex issues arising from the November 2014 ruling by the Connecticut Supreme Court in Byrne v. Avery Center for Obstetrics and Gynecology, P.C. The case has significant implications for individual health information (“IHI”) privacy in the context of domestic relations – both in the divorce or legal separation context and even in a less confrontational domestic environment.  While settlement agreements and divorce decrees often address healthcare and health insurance issues, especially where there are custodial children involved, addressing IHI issues is much less common. Michael and Elizabeth also discuss practical tips for individuals dealing with situations involving their domestic relationships.

I invite you to read all three parts of their series. Here are Part I, Part II and Part III.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Yesterday, I met with a potential client who was considering changing attorneys in the middle of a divorce.  Although dissatisfied with the present counsel, the  potential client expressed concerns that the judge might have a negative opinion if there was a change mid-stream.

The lawyer client relationship is tough in many aspects. You have a “first date”, with someone you either heard of through a friend or acquaintance, read about on the internet, or saw in an ad. Let’s face it, Match.com sometimes has more info about a prospective suitor.  You’re worried about your children, and your concerned what you will get, or what you will pay.   And in most cases, you make a decision after about an hour or so consultation in which you condense years of your life into a short conversation. Just like a second date ( or a subsequent one) when a person realizes that “it’s just not working out,” some times the attorney client relationship is not meant to be.

The question is, why not?  That is the crux of the matter.  Sometimes it may just be a personality thing. I always say that in many ways, a matrimonial lawyer is also a pseudo-counselor.  However, some lawyers simply cannot be in that role, and some clients need it. As in all relationships, there needs to be bonding between the client and the attorney with whom there will be a relationship for about a year and a half (at least).

Your case may have aspects which are simply better suited for other counsel. Does your case have issue which are particularly complex and you need someone who has a bit more experience with those issues?  Did your attorney’s schedule get really busy and they simply do not have enough time to devote to your case.

When you are concerned, for any reason, get a second opinion.  If you have a good lawyer, they will not mind this at all.   This is the rest of your life, and you are entitled to feel comfortable about the decisions that you are making.

But back to the initial question, what will a judge think? Well, the first thing the judge is going to want to know is how it will delay the court’s calendar. This is why in some states, including New Jersey, after a certain point you have to get the court’s permission to change lawyers.  But as long as there is good cause, the judges know that changes happens for many valid and good reasons and will often allow it.

That being said, when a client is unhappy with a lawyer because he or she is hearing something that they don’t want to, that’s another story entirely.  Or, when someone has changed attorneys three times, that’s a sure sign that it may not be the attorney who is the issue. That gets me back to, get another opinion before making a change. If you are being told the same thing by several experienced attorneys, it may be time to listen.

Oftentimes I hear from clients that gathering their financial information is the most daunting task they will face during the divorce process. They picture being buried in an avalanche of documents, account numbers and canceled checks.

The New Jersey Divorce App’s Finance Tracker can help.  In fact, I have recommended it to my clients before, with great results.

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The Finance Tracker is designed to help you focus in on the necessary information that you will need throughout the divorce process.

It is split up into 4 categories:

Income

Assets – like your house, car, bank accounts, retirement accounts, etc.

Expenses

Liabilities

Each section is then split into subcategories, which allows you to categorize the information in a way that makes sense.

Here is the best part: you can send the information directly to your attorney – straight from the app!

While the divorce process can be overwhelming at times, the New Jersey Divorce App, along with its Finance Tracker and other great features make things a little bit more manageable.

For more information and to download the New Jersey Divorce App, click here.

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Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

As technology progresses, the use of it rears its head during divorce cases.  One such form of technology is the use of a GPS in a spouses vehicle.  In a reported (precedential) opinion decided on July 7, 2011, in the case of Villanova vs. Innovative Investigations, the Appellate Division affirmed a trial court’s granting of summary judgment, effectively dismissing a husband’s invasion of privacy claim.

In this case, the wife , in the midst of divorce proceedings, hired a private investigator to follow her husband.  The private investigator later suggested that the wife put a GPS device in the family vehicle driven by the husband and she did.  She later used the findings in the divorce case.  During the divorce case, the husband amended his divorce pleading to seek invasion of privacy damages against the wife.  He also tried to add the defendant’s in this case, the private investigator as a defendant in the divorce case but the court would not allow that.  The husband ultimately abandoned his tort claim against the wife in their settlement but reserved his rights to pursue his claim against the private investigator.

The invasion of privacy claim in the case against the private investigator was ultimately dismissed because the court found that there is no expectation of privacy driving over public roads. 

Continue Reading Appellate Division Finds that Putting GPS in Spouse's Car was Not an Invasion of Privacy

So often we hear about how to prevent identity theft. Do not give out your social security number; do not give out bank account information, etc. But what do you do when you are going through a divorce, and the Court requires you to provide documents that contain your social security number and/or bank account information. The thought of one’s personal income tax returns and bank statements floating around the courthouse for all personnel to see can make anyone feel uncomfortable. 

The Supreme Court of New Jersey recognized this issue and adopted R. 1:38-7. Said Rule requires that any document or pleading submitted to the Court containing confidential personal identifiers must be redacted. A confidential personal identifier is defined as a Social Security number, driver’s license number, vehicle plate number, insurance policy number, active financial account number, or active credit card number. In addition, in the event one of your accounts, i.e. bank account, brokerage house account, etc. is the subject of the litigation, the Court Rules provide that only the last four (4) digits of the account be disclosed if the account cannot otherwise be identified.

As seen in Affluent Magazine.

Divorce for those of substantial wealth relative to those of limited wealth is an oxymoron – aspects of divorce between the two classifications are both similar and yet quite different. In final analysis, it is a question of degree – that is, the number of zeros behind the dollar signs. This summary discussion will deal with certain procedures and aspects of divorce which are similar to both. The distinctions lie in the availability and desirability of various procedural vehicles to the two groups.

Privacy and Confidentiality

Nearest to the hearts of you — the rich and famous (next to, of course, your money) — is privacy and confidentiality. None of you in your right mind wants to spread your dirty laundry in public – least of all those of you blessed with substantial wealth. With divorces of such persons being instant grist for media dissemination, generally, it is better for all concerned (especially their children on a whole host of levels) to have disposition of your matter not a matter of public spectacle. All too often, the perceived lesser-advantaged spouse may play the publicity card (or threaten to do so) in order to opt out a financial advantage – or in simple parlance – vie for “hush” money. Perception by the lesser-advantaged spouse that the financially-advantaged spouse will deal with her or him fairly (whatever that may mean) will usually go a long way toward negotiations where calmer minds prevail. Another method of seeking to assure a divorce far from the public eye is for a pre-marital agreement to address issues of confidentiality and mediation and/or arbitration out of the public limelight.

Continue Reading DIVORCE FOR THE WELL-TO-DO