Archives for May 2012

What are the Differences between Divorce Mediation, Arbitration, and Traditional Divorce?

If your marriage is coming to an end, New Jersey provides you with options as far as the process of dissolution. Many divorcing couples today choose mediation, arbitration, or combine one of those processes with traditional divorce. You can approach each method with our without hiring an attorney. The process that is right for you depends on your relationship with your spouse, your financial situation, your interest in negotiating rather than litigating (going to trial), and the complexity of issues involved. The following paragraphs consider control (who makes the final decision), privacy, and cost.

Who makes the final decision, privacy, and other issues

In successful divorce mediation, you and your spouse choose a mediator to help as you make all decisions regarding division of property and alimony/support. You and your spouse decide what the rules will be as your proceed. The meetings with you, your spouse, and the mediator conclude when you have worked out a divorce agreement. You and your spouse may consult with divorce attorneys during or at the conclusion of the process. Either party can discontinue mediation at any time and refuse to sign any agreement. If both spouses sign a divorce agreement, the family court judge will typically approve it quickly, and it will become part of the divorce judgment. If the divorce involves children, the court will take your wishes into consideration when determining custody and child support. Mediation is usually substantially less expensive than a litigated divorce. Mediation is a private, closed process. The records are not public.

In divorce arbitration, you and your spouse will choose an arbitrator to decide on the terms of your divorce, including division of property and debt, alimony/spousal support, and child support. You may select a professional with special expertise in an area of concern, such as tax law or special needs child support, or simply choose an arbitrator you feel comfortable with. You decide whether the decision of the arbitrator will be binding. The arbitrator will examine the facts and listen to each of you present your case, and then make a decision. If you agreed on binding arbitration, you will not have the right to appeal the decision, although the court will review child support and child custody issues if requested. Divorce arbitration is considered a less difficult and expensive process than traditional divorce. Arbitration is a private, closed process. Records are not public.

In traditional divorce, one spouse files a complaint for divorce. The court then sets a schedule of appearances. Each spouse will independently decide whether to hire counsel. If you hire a lawyer for your divorce, you will have little direct communication with the judge—your attorney will handle most statements. Your attorney and you’re your spouse/spouse’s lawyer will charge fees for all time spent preparing for or discussing the case. If no agreement is negotiated, the case is litigated in court. Court records are public, the terms of the divorce are decided by whichever judge hears the case, and attorney fees may be considerably higher than in a mediated or arbitrated divorce.

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Permanent Partial Disability vs. Temporary Total Disability

New Jersey Workers’ Compensation law provides, in some areas, clear and concrete guidelines for work-related injury awards. Loss of a middle finger below the first joint, for example, is compensated with an award equal to 25 weeks pay. On the other hand, determination of disability, permanent or temporary, partial or total, depends on subjective evaluations of the employee’s ability to perform work.

How a judge determines permanent partial disability

Permanent partial disability is defined in the Workers’ Compensation statutes as permanent impairment. Criteria considered in determining disability include a reduced ability to work in light of age, training, and experience. The injured employee will be examined by two doctors, one presumably favoring the employer, and one the employee. The case will then be heard by a Judge of Compensation, who will listen to the employee’s description of the effect the injury has had on his or her life. It is recommended that the employee be represented by a workers’ compensation attorney at that hearing.

In a 9-11 World Trade Center case, Judge Ferriaro determined that David Handshuh’s permanent orthopedic pulmonary, neurological, and neurosychiatric injuries equaled 60% of total disability. She did so after listening to testimony of numerous doctors. Her decision referred to “the usual disparity in the estimates of permanent disability offered by the doctors,” commented that she was not bound by those estimates, and stated that she found Handshuh’s doctors to be more persuasive and credible. (Handschuh v. New York Daily News)

A determination of temporary total disability

There is common confusion, even among medical professionals, between the terms impairment and disability. Medically, impairment (altered health status) does not necessarily result in a disability (inability to perform actions previously possible). Social Security and Workers’ Compensation guidelines have more specific, work-related definitions.

Under New Jersey Workers’ Compensation law, disability is in part defined by the person’s reduced wage-earning capacity. Temporary total disability benefits are wage compensation paid until an injured employee is able to return to work. It is calculated at 70% of the weekly wage received at the time of the injury, not to total more than 75% of the average or less than 20% of the average. Temporary disability exists until the worker is as far restored as possible (in other words, has reached maximum medical improvement), whether or not the worker is able to return to work. It can be paid up to 400 weeks. The patient’s doctor determines when the patient has reached that endpoint in recovery, or is able to return to work.

An injured worker who feels the doctor has erred in determining the patient’s ability to return to work or endpoint in recovery can file a claim with the New Jersey Department of Labor and Workforce Development. The claims process is challenging and the outcome can critically affect the worker’s quality of life. For that reason, the worker is advised to retain a workers’ compensation lawyer. The attorney will charge no fees until the matter is concluded, when the judge will determine the amount of the legal fees.

Contact us for a free attorney consultation, or visit our Practice Areas page for more information about Taylor & Boguski.

Factors to Consider When Choosing a Divorce Mediator

By pursuing divorce mediation, you are taking an important step toward resolving issues in the most financially and emotionally economical manner. When you approach the court with property, child support and custody agreements you have worked out yourself, you have maintained control of your future and that of your children. The judge is very likely to approve your agreement and include its terms in the final divorce settlement.

Now, what factors should you consider when choosing a divorce mediator? And where can you look?

When you contact a divorce mediator, be prepare to discuss the following points:

Credentials. You should feel very comfortable asking for a clear explanation of a divorce mediator’s credentials. New Jersey does not require family law and divorce mediators to be licensed or certified. It does have certain training and supervised experience requirements for mediators working in court-approved settings. Training requirements can be met through a relevant advanced degree or by completing a course approved by the court. Experience can fulfill part of training requirements. Professional mediation associations may base membership and referral requirements on the state standard. Has the mediator been appointed to the matrimonial roster maintained by the New Jersey Administrative Office of the Courts?

Personality and style. You and your spouse have to feel comfortable with the mediator’s style. Will you feel more comfortable with someone who simply facilitates your discussion, or are you looking for someone to give direct instructions? Will you feel safe and comfortable discussing sensitive issues with this person? You and your spouse may each want to meet with the mediator to get a first take on compatibility. The divorce mediator should not be offended if you decide to work with another person.

Experience and reputation. Ask how long the mediator has been in practice and how many divorce he or she has handled in the last two years. Ask about results— what percentage of mediations were successful, and how many couples ended up litigating their cases. (An average rate of successful mediated resolutions would be in the 65-80 percent range.) Is the mediator willing to provide references? Have any complaints been filed with the courts or professional mediation associations? Does the mediator train or mentor newer members of the profession?

Cost. Fees should be clearly stated. The mediator who charges the lowest rate will not necessarily be the most economical choice, but there should be no question about the billing structure.

Does the mediator work with attorneys? Some mediators suggest clients have respective divorce lawyers review their final agreement.

The number of meetings necessary to reach an agreement will depend on the complexity of your issues and the distance you and your spouse have to cover to meet at a common ground. A skillful divorce mediator will guide you as you set aside painful personal issues and focus on the business at hand: preserving the maximum marital estate, developing an agreement the court will approve as fair, and if there are children, providing the best possible outcome from their perspective.

Contact us for a free attorney consultation, or visit our Practice Areas page for more information about Taylor & Boguski.

Gary W. Boguski – Selected to Speak at the Second Annual Workers’ Compensation Seminar

Gary W. Boguski was selected to serve as a speaker at the Second Annual Workers’ Compensation Seminar held in Mount Holly on May 1, 2012.

The Workers’ Compensation Seminar is held annually throughout the state of New Jersey. Each year a range of workers’ compensation topics are discussed. This year the seminar focused on discovery issues facing workers’ compensation attorneys, the going and coming rule, and how to properly handle the issue of when medical treatment is paid for by a client’s health insurance.

Mr. Boguski, with over thirty-four years of workers’ compensation experience, presented on the petitioner’s perspective on the issues.