January 29, 2025 • 15 mins
Original Air Date: January 26, 2025
Morristown-based family attorney Sandra Fava says no-fault divorce could be in danger.
Morristown-based family attorney Sandra Fava says no-fault divorce could be in danger.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Welcome to Sunstein Sessions on iHeartRadio, Conversations about issues that matter.
Here's your host, three time Gracie Award winner, Shelley Sunstein.
Speaker 2 (00:10):
I want to introduce you to Sandra Fava. She is
an attorney in Marstown and she specializes in family issues
and that would include divorce. First of all, a question, Sandra.
Every first Monday after the holidays, it's always noted as
(00:35):
the biggest divorce day of the year, or I should
say the biggest day of the year for divorce lawyers,
the first Monday after the holidays.
Speaker 3 (00:45):
Is that true? Yes, I would say in it.
Speaker 4 (00:50):
You know, I can't speak for everyone, but generally, if
you look at times of the year's January in particular,
not necessarily that first Monday, but that first week after
the holiday days is a pretty busy time for people
to be contacting you and wanting to talk or take
steps to move forward.
Speaker 2 (01:08):
So you do never you never, you as an attorney,
never take off the first week of January, right.
Speaker 4 (01:17):
Yeah, Yeah, it's probably not a great idea to get
it not be around.
Speaker 3 (01:20):
I agree.
Speaker 2 (01:21):
Yeah, So we're coming into a new phase and we
just really don't know exactly what to expect with the
new administration in Washington, So what kind of things are
you looking at, what kind of changes could be in
(01:41):
our future when it comes to divorce law.
Speaker 4 (01:46):
So it's an interesting time certainly for the world, you know,
as we welcome in very short term a new administration
and the political climate just in general. Over the past
couple of years, I see that a lot more practitioners
as well as potential clients or clients are looking for
(02:06):
alternate dispute resolution because of the fear of being in
a courtroom because you don't know what your judge, what
their political affiliations are, what their beliefs are, you know,
what their personal experiences may have been which relate to
any sort of bias that they may have in a
particular situation. And I think that that's more pronounced in
(02:30):
this environment than it has been in years past. I
think that the public at large has certainly have a
greater mistrust of, you know, judges and people who are
either politically appointed or elected, just because of all that's happened.
So there has been a greater push towards what we
call as practitioners alternate dispute resolution, which really encompasses private
(02:54):
mediation and private arbitration. These are out of court procedures
that are allow people to work through their issues without
having a judge involved. In the state of New Jersey,
which is where I exclusively practice those, mediation is completely confidential,
which means if it is unsuccessful and you later end
(03:16):
up in court in a litigated manner, you cannot disclose
what either party's position was during a mediation or what
the mediator recommended. So it's not a fit for every situation,
but it does work very well for many families in transition,
just you know understanding if there are situation is right
(03:37):
for them. The other thing I mentioned is arbitration. Arbitration
is essentially hiring a private lawyer. Some people use retired judges,
some people use attorneys who have been practicing a long time,
and you have access to them. The rules of court,
let's say, should apply, so there should be deadlines and
(03:59):
the rules of evidence, and you'll present yourself for your
case with witnesses and you know documents as you would
in a courtroom. But you are paying someone privately to
do that. And it's a benefit for families who can
do it because number one, you have a selection process,
right you have a hand in picking who it is
(04:20):
that's going to determine these issues for you and your family.
Speaker 3 (04:24):
When you go to court, you don't get to pick
your judge.
Speaker 4 (04:27):
You know, you get a docket number and usually those
are assigned to certain judges throughout the courthouse.
Speaker 3 (04:33):
So you know, there's a greater.
Speaker 4 (04:35):
Comfort level and having that ability to have a say
and who's going to help decide these issues for you.
You also get you know, access and speed, which is
something particularly in New Jersey that we have been working on,
but we're not quite there yet. You know, cases are
taking much longer to go through the judicial system. The
pandemic is still something that we're recovering from as far
(04:57):
as the number of judges we had retired during that
time and just the backlog of cases because during the
pandemic we did see a big uptick in litigaged cases
in the family court system.
Speaker 3 (05:13):
So, you know, having an arbitration.
Speaker 4 (05:15):
Arbitrator excuse me, figure out your case, you know, gives
you your more flexibility and scheduling, more access. You know,
you can go several days in a row.
Speaker 3 (05:25):
You can get there quicker.
Speaker 4 (05:26):
The downside is obviously that you're paying for that and
access to the courts is free in our country, so
you don't have to pay if you litigate, you know,
in the county or jurisdiction where you live. But that
has become much more top of people's minds, even when
they're coming to see me. They have Most people I've
experienced to have a lot of questions right away about
(05:47):
doing alternative dispute resolution.
Speaker 2 (05:51):
And also it's financially more viable. Correct if you do
like divorce mediation can be yes, I mean that is
the idea.
Speaker 4 (06:02):
But what I often tell clients or potential clients is
every case is unique. So if you are in a
high conflict relationship, or if you are a spouse who
does not have access to information right say, you have
what I would call more traditional roles where perhaps one
spouse works outside the home and they manage all the
(06:22):
finances and you really are the other spouse and you
don't have passwords and you're not really sure what's going on.
You have to make sure that you're walking into a
mediation on as close to equal footing as you can
possibly have, because when there is disparate power positions.
Speaker 3 (06:39):
Mediation will not work.
Speaker 4 (06:42):
You can't make decisions if you don't have information and
if somebody is not willing to give you access to information,
and so in high conflict cases there's a lot of
power dynamics. There's oftentimes some sort of domestic violence that
has existed or is existing, and that doesn't have to
be physical. It can be things like course of control
(07:03):
things like that. So you have to know that your
case is rightly situated to begin the mediation process, because
you can start spend significant money, you know, working with somebody,
and then at the end of the day, because it
is completely voluntary, somebody can say I no longer want
to be a part of this and walk away, and
you literally are then forced to start from scratch in
(07:24):
a litigation setting.
Speaker 2 (07:26):
I'm speaking with Sandra Fava. She is the founder of
managing attorney of Fava Law, a family law practice based
in Marstown. So, how much of a threat is it
the possibility of the elimination of no fault divorce And
if there is an elimination, what does this mean for women?
Speaker 4 (07:49):
Yeah, so I think that threat is real with the
new administration coming in.
Speaker 1 (07:53):
It is.
Speaker 3 (07:54):
It has been widely spoken about.
Speaker 4 (07:56):
It was something that was first brought off during soon
to be President Trump's initial administration.
Speaker 3 (08:03):
And I think that.
Speaker 4 (08:07):
It will be interesting to see what each state does
with regard to that, you know, having the ability to
eliminate that as part of their statutory permissives for filing
for divorce in each state, I.
Speaker 3 (08:19):
Would hope that New Jersey would maintain it.
Speaker 4 (08:22):
It is a more efficient, certainly cost effective way in
which people.
Speaker 3 (08:28):
To get divorce, even if there are other issues.
Speaker 4 (08:32):
Not having to prove a grounds for divorce is significantly
cost savings for parties on both sides of a transaction
if it is eliminated. What that means is that, you know,
particularly women and men, they will have to go to
the fault grounds, which you know in New Jersey specifically include,
(08:54):
you know, abandonment which you have to demonstrate has existed
for at least eighteen months or longer, habitual drunkenness, or
you know, some sort of substance abuse or substance reliance
on which is difficult to prove. Adultery, which in the
state of New Jersey requires that you name the adultering party,
(09:20):
you know, the party with whom your spouse is having
this affair extramarital affair, and serve them with a copy
of your complaint for divorce because they are being named
in a lawsuit and they have to be afforded the
right to participate should they so choose. And then extreme cruelty,
which is, you know, specifying allegations of as it says,
(09:42):
extreme cruelty, that would be the foundation for you to
be able to divorce. And you can make those allegations
in a pleading, but at the time of a hearing
or a trial, you would have to then prove them
if the irreconcilable differences or the no fault ground was
the dismissed. So that really makes particularly women who are
(10:06):
study show the more disadvantaged spouses in many of these
dynamics having to have the wherewithal to gather enough of
the evidence that would give them the basis for a
grounds for divorce.
Speaker 3 (10:20):
And that's difficult to do. Now.
Speaker 2 (10:22):
I know that you are based in New Jersey, but
in New York very very recently, towards the end of
the year, adultery was made no longer to be a crime.
Speaker 3 (10:36):
What does that mean?
Speaker 2 (10:37):
What does that mean exactly when it comes to divorce
and women, So.
Speaker 4 (10:43):
Adultery is a really interesting cause of action for divorce
because you know, when it first became part of statutory law,
I think that it was you have to think about.
Speaker 3 (10:56):
The you know, the social times in which we were
living in.
Speaker 4 (10:58):
Right, that marriage was very different than the term that
we use today for marriage. Right, We know, families come
in all shapes and sizes and all different dynamics, and
so you know, it was a much more traditional setting
and it was often, although not always, you know, this
perception that men were the ones adulter, you know, were
(11:18):
the adulterers, and women were left with children and without
access to jobs and resources and financial you know, in
this day and age, at least in my practice, it's
very rare that we file based on the grounds of
adultery because of what I mentioned earlier.
Speaker 3 (11:35):
It has to you have to name that party, you
have to have them served. And when you have a
no fault alternative, what does adultery get you?
Speaker 4 (11:46):
Well, in New Jersey, under our case law, it really
only matters when you can demonstrate that there have been
marital assets that have been used to support an extra
marital relationship. So it has very little impact on custody
or parenting time. And really it's it's a very finite
(12:06):
financial litigated piece of a case, and you really have
to be able to say that there was assets that
were used.
Speaker 3 (12:16):
For this relationship.
Speaker 4 (12:17):
And when I say assets, I'm not talking about an
occasional dinner or a minor gift. We're talking about significant
sums of money supporting, yes, like support like you know,
setting someone up in their own apartment, like helping to
pay for their education, like you know, helping to care
for their children, perhaps of a different relationship. So I
(12:38):
don't think that it is necessarily a negative from a
practice area. I think that it also charges emotions in
a divorced situation when people use that ground, and it
is already a highly emotionally charged area of the law
to begin with. So I do think that, you know,
as in the greater scheme of things, when we take
(12:59):
a step back and look at it overall, I actually
think that this is a positive step in the law,
you know, unless you can really demonstrate that other things.
Speaker 3 (13:09):
And I have to say, in my nearly twenty years, it's.
Speaker 4 (13:11):
Been very I can count on one hand how many
cases I've been involved with where somebody could actually have
that ability to demonstrate that type of harm.
Speaker 3 (13:21):
To the marital unit from this relationship.
Speaker 2 (13:24):
We only have about a minute and a half left,
Sandra Fava. What have we not touched on the two
on our audience to know?
Speaker 3 (13:31):
So, I think if you're considering divorce in the new year,
you know.
Speaker 4 (13:34):
A couple of things to think about. Be prepared and
do your homework. The attorney that you picked to work
with is so important, and yes, you can always change attorneys,
but it's not necessarily a favored look by court systems
if somebody goes through several different attorneys.
Speaker 3 (13:51):
So it's great to get a.
Speaker 4 (13:53):
Referral excuse me from a friend or a colleague or
a family member, but no two divorces are the same.
Speaker 3 (13:59):
Everybody's family situation is unique.
Speaker 4 (14:01):
Make sure that you're talking to somebody who has experience
and what you think the issues are going to be
in your divorce.
Speaker 3 (14:07):
You know, speak to at least two.
Speaker 4 (14:09):
If not three, Ask the right questions about their experience.
Speaker 3 (14:13):
Are they litigators?
Speaker 4 (14:14):
Do they mediate? Do they do high conflict? How often
are they in court? You know, do they practice in
the area in which you live in? Do they work
in mediation? Are they a mediator? You know, all of
these questions to make the right decision, because I think
that is the most important decision that people make, and
they don't really appreciate that at the time because a
(14:35):
lot of people aren't distressed when they're making these decisions
and it's not a.
Speaker 3 (14:39):
Happy moment in their lives.
Speaker 4 (14:40):
So that would be the one takeaway if nothing else
from this call, is do your homework, be prepared, Try
to gather information about your own personal lives, your financial lives,
you know, before you set forth and start interviewing attorneys.
Because the better prepared you are, the better prepared that
attorney will be to work with you.
Speaker 2 (15:00):
Thank you so much, Sandra Fava, the founder and managing
attorney at Fava Law, based in Morristown.
Speaker 1 (15:06):
Now you've been listening to Sunsteen Sessions on iHeartRadio, a
production of New York's classic rock Q one O four
point three
Welcome to Sunstein Sessions on iHeartRadio, Conversations about issues that matter.
Here's your host, three time Gracie Award winner, Shelley Sunstein.
Speaker 2 (00:10):
I want to introduce you to Sandra Fava. She is
an attorney in Marstown and she specializes in family issues
and that would include divorce. First of all, a question, Sandra.
Every first Monday after the holidays, it's always noted as
(00:35):
the biggest divorce day of the year, or I should
say the biggest day of the year for divorce lawyers,
the first Monday after the holidays.
Speaker 3 (00:45):
Is that true? Yes, I would say in it.
Speaker 4 (00:50):
You know, I can't speak for everyone, but generally, if
you look at times of the year's January in particular,
not necessarily that first Monday, but that first week after
the holiday days is a pretty busy time for people
to be contacting you and wanting to talk or take
steps to move forward.
Speaker 2 (01:08):
So you do never you never, you as an attorney,
never take off the first week of January, right.
Speaker 4 (01:17):
Yeah, Yeah, it's probably not a great idea to get
it not be around.
Speaker 3 (01:20):
I agree.
Speaker 2 (01:21):
Yeah, So we're coming into a new phase and we
just really don't know exactly what to expect with the
new administration in Washington, So what kind of things are
you looking at, what kind of changes could be in
(01:41):
our future when it comes to divorce law.
Speaker 4 (01:46):
So it's an interesting time certainly for the world, you know,
as we welcome in very short term a new administration
and the political climate just in general. Over the past
couple of years, I see that a lot more practitioners
as well as potential clients or clients are looking for
(02:06):
alternate dispute resolution because of the fear of being in
a courtroom because you don't know what your judge, what
their political affiliations are, what their beliefs are, you know,
what their personal experiences may have been which relate to
any sort of bias that they may have in a
particular situation. And I think that that's more pronounced in
(02:30):
this environment than it has been in years past. I
think that the public at large has certainly have a
greater mistrust of, you know, judges and people who are
either politically appointed or elected, just because of all that's happened.
So there has been a greater push towards what we
call as practitioners alternate dispute resolution, which really encompasses private
(02:54):
mediation and private arbitration. These are out of court procedures
that are allow people to work through their issues without
having a judge involved. In the state of New Jersey,
which is where I exclusively practice those, mediation is completely confidential,
which means if it is unsuccessful and you later end
(03:16):
up in court in a litigated manner, you cannot disclose
what either party's position was during a mediation or what
the mediator recommended. So it's not a fit for every situation,
but it does work very well for many families in transition,
just you know understanding if there are situation is right
(03:37):
for them. The other thing I mentioned is arbitration. Arbitration
is essentially hiring a private lawyer. Some people use retired judges,
some people use attorneys who have been practicing a long time,
and you have access to them. The rules of court,
let's say, should apply, so there should be deadlines and
(03:59):
the rules of evidence, and you'll present yourself for your
case with witnesses and you know documents as you would
in a courtroom. But you are paying someone privately to
do that. And it's a benefit for families who can
do it because number one, you have a selection process,
right you have a hand in picking who it is
(04:20):
that's going to determine these issues for you and your family.
Speaker 3 (04:24):
When you go to court, you don't get to pick
your judge.
Speaker 4 (04:27):
You know, you get a docket number and usually those
are assigned to certain judges throughout the courthouse.
Speaker 3 (04:33):
So you know, there's a greater.
Speaker 4 (04:35):
Comfort level and having that ability to have a say
and who's going to help decide these issues for you.
You also get you know, access and speed, which is
something particularly in New Jersey that we have been working on,
but we're not quite there yet. You know, cases are
taking much longer to go through the judicial system. The
pandemic is still something that we're recovering from as far
(04:57):
as the number of judges we had retired during that
time and just the backlog of cases because during the
pandemic we did see a big uptick in litigaged cases
in the family court system.
Speaker 3 (05:13):
So, you know, having an arbitration.
Speaker 4 (05:15):
Arbitrator excuse me, figure out your case, you know, gives
you your more flexibility and scheduling, more access. You know,
you can go several days in a row.
Speaker 3 (05:25):
You can get there quicker.
Speaker 4 (05:26):
The downside is obviously that you're paying for that and
access to the courts is free in our country, so
you don't have to pay if you litigate, you know,
in the county or jurisdiction where you live. But that
has become much more top of people's minds, even when
they're coming to see me. They have Most people I've
experienced to have a lot of questions right away about
(05:47):
doing alternative dispute resolution.
Speaker 2 (05:51):
And also it's financially more viable. Correct if you do
like divorce mediation can be yes, I mean that is
the idea.
Speaker 4 (06:02):
But what I often tell clients or potential clients is
every case is unique. So if you are in a
high conflict relationship, or if you are a spouse who
does not have access to information right say, you have
what I would call more traditional roles where perhaps one
spouse works outside the home and they manage all the
(06:22):
finances and you really are the other spouse and you
don't have passwords and you're not really sure what's going on.
You have to make sure that you're walking into a
mediation on as close to equal footing as you can
possibly have, because when there is disparate power positions.
Speaker 3 (06:39):
Mediation will not work.
Speaker 4 (06:42):
You can't make decisions if you don't have information and
if somebody is not willing to give you access to information,
and so in high conflict cases there's a lot of
power dynamics. There's oftentimes some sort of domestic violence that
has existed or is existing, and that doesn't have to
be physical. It can be things like course of control
(07:03):
things like that. So you have to know that your
case is rightly situated to begin the mediation process, because
you can start spend significant money, you know, working with somebody,
and then at the end of the day, because it
is completely voluntary, somebody can say I no longer want
to be a part of this and walk away, and
you literally are then forced to start from scratch in
(07:24):
a litigation setting.
Speaker 2 (07:26):
I'm speaking with Sandra Fava. She is the founder of
managing attorney of Fava Law, a family law practice based
in Marstown. So, how much of a threat is it
the possibility of the elimination of no fault divorce And
if there is an elimination, what does this mean for women?
Speaker 4 (07:49):
Yeah, so I think that threat is real with the
new administration coming in.
Speaker 1 (07:53):
It is.
Speaker 3 (07:54):
It has been widely spoken about.
Speaker 4 (07:56):
It was something that was first brought off during soon
to be President Trump's initial administration.
Speaker 3 (08:03):
And I think that.
Speaker 4 (08:07):
It will be interesting to see what each state does
with regard to that, you know, having the ability to
eliminate that as part of their statutory permissives for filing
for divorce in each state, I.
Speaker 3 (08:19):
Would hope that New Jersey would maintain it.
Speaker 4 (08:22):
It is a more efficient, certainly cost effective way in
which people.
Speaker 3 (08:28):
To get divorce, even if there are other issues.
Speaker 4 (08:32):
Not having to prove a grounds for divorce is significantly
cost savings for parties on both sides of a transaction
if it is eliminated. What that means is that, you know,
particularly women and men, they will have to go to
the fault grounds, which you know in New Jersey specifically include,
(08:54):
you know, abandonment which you have to demonstrate has existed
for at least eighteen months or longer, habitual drunkenness, or
you know, some sort of substance abuse or substance reliance
on which is difficult to prove. Adultery, which in the
state of New Jersey requires that you name the adultering party,
(09:20):
you know, the party with whom your spouse is having
this affair extramarital affair, and serve them with a copy
of your complaint for divorce because they are being named
in a lawsuit and they have to be afforded the
right to participate should they so choose. And then extreme cruelty,
which is, you know, specifying allegations of as it says,
(09:42):
extreme cruelty, that would be the foundation for you to
be able to divorce. And you can make those allegations
in a pleading, but at the time of a hearing
or a trial, you would have to then prove them
if the irreconcilable differences or the no fault ground was
the dismissed. So that really makes particularly women who are
(10:06):
study show the more disadvantaged spouses in many of these
dynamics having to have the wherewithal to gather enough of
the evidence that would give them the basis for a
grounds for divorce.
Speaker 3 (10:20):
And that's difficult to do. Now.
Speaker 2 (10:22):
I know that you are based in New Jersey, but
in New York very very recently, towards the end of
the year, adultery was made no longer to be a crime.
Speaker 3 (10:36):
What does that mean?
Speaker 2 (10:37):
What does that mean exactly when it comes to divorce
and women, So.
Speaker 4 (10:43):
Adultery is a really interesting cause of action for divorce
because you know, when it first became part of statutory law,
I think that it was you have to think about.
Speaker 3 (10:56):
The you know, the social times in which we were
living in.
Speaker 4 (10:58):
Right, that marriage was very different than the term that
we use today for marriage. Right, We know, families come
in all shapes and sizes and all different dynamics, and
so you know, it was a much more traditional setting
and it was often, although not always, you know, this
perception that men were the ones adulter, you know, were
(11:18):
the adulterers, and women were left with children and without
access to jobs and resources and financial you know, in
this day and age, at least in my practice, it's
very rare that we file based on the grounds of
adultery because of what I mentioned earlier.
Speaker 3 (11:35):
It has to you have to name that party, you
have to have them served. And when you have a
no fault alternative, what does adultery get you?
Speaker 4 (11:46):
Well, in New Jersey, under our case law, it really
only matters when you can demonstrate that there have been
marital assets that have been used to support an extra
marital relationship. So it has very little impact on custody
or parenting time. And really it's it's a very finite
(12:06):
financial litigated piece of a case, and you really have
to be able to say that there was assets that
were used.
Speaker 3 (12:16):
For this relationship.
Speaker 4 (12:17):
And when I say assets, I'm not talking about an
occasional dinner or a minor gift. We're talking about significant
sums of money supporting, yes, like support like you know,
setting someone up in their own apartment, like helping to
pay for their education, like you know, helping to care
for their children, perhaps of a different relationship. So I
(12:38):
don't think that it is necessarily a negative from a
practice area. I think that it also charges emotions in
a divorced situation when people use that ground, and it
is already a highly emotionally charged area of the law
to begin with. So I do think that, you know,
as in the greater scheme of things, when we take
(12:59):
a step back and look at it overall, I actually
think that this is a positive step in the law,
you know, unless you can really demonstrate that other things.
Speaker 3 (13:09):
And I have to say, in my nearly twenty years, it's.
Speaker 4 (13:11):
Been very I can count on one hand how many
cases I've been involved with where somebody could actually have
that ability to demonstrate that type of harm.
Speaker 3 (13:21):
To the marital unit from this relationship.
Speaker 2 (13:24):
We only have about a minute and a half left,
Sandra Fava. What have we not touched on the two
on our audience to know?
Speaker 3 (13:31):
So, I think if you're considering divorce in the new year,
you know.
Speaker 4 (13:34):
A couple of things to think about. Be prepared and
do your homework. The attorney that you picked to work
with is so important, and yes, you can always change attorneys,
but it's not necessarily a favored look by court systems
if somebody goes through several different attorneys.
Speaker 3 (13:51):
So it's great to get a.
Speaker 4 (13:53):
Referral excuse me from a friend or a colleague or
a family member, but no two divorces are the same.
Speaker 3 (13:59):
Everybody's family situation is unique.
Speaker 4 (14:01):
Make sure that you're talking to somebody who has experience
and what you think the issues are going to be
in your divorce.
Speaker 3 (14:07):
You know, speak to at least two.
Speaker 4 (14:09):
If not three, Ask the right questions about their experience.
Speaker 3 (14:13):
Are they litigators?
Speaker 4 (14:14):
Do they mediate? Do they do high conflict? How often
are they in court? You know, do they practice in
the area in which you live in? Do they work
in mediation? Are they a mediator? You know, all of
these questions to make the right decision, because I think
that is the most important decision that people make, and
they don't really appreciate that at the time because a
(14:35):
lot of people aren't distressed when they're making these decisions
and it's not a.
Speaker 3 (14:39):
Happy moment in their lives.
Speaker 4 (14:40):
So that would be the one takeaway if nothing else
from this call, is do your homework, be prepared, Try
to gather information about your own personal lives, your financial lives,
you know, before you set forth and start interviewing attorneys.
Because the better prepared you are, the better prepared that
attorney will be to work with you.
Speaker 2 (15:00):
Thank you so much, Sandra Fava, the founder and managing
attorney at Fava Law, based in Morristown.
Speaker 1 (15:06):
Now you've been listening to Sunsteen Sessions on iHeartRadio, a
production of New York's classic rock Q one O four
point three
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