On September 10, 2014, Governor Chris Christie signed the NJ Family Collaborative Law Act into law. This powerful statute empowers families to divorce with dignity and self-esteem, without resorting to conventional litigation.
The collaborative divorce process encourages open and honest dialogue and seeks to foster an environment of respect from the beginning of the divorce process. The idea is that both parties can work together to come up with solutions that meet the needs of the family and lay a foundation for continued cooperation in the future. By removing the threat of litigation, the parties are encouraged to find solutions to difficult problems by seeing all sides and not digging in for a potential “win” in court.
Participation Agreement
N.J.S.A. 2A:23D-5 requires the parties to enter into a Participation Agreement before beginning the collaborative divorce process. One critical point in the Participation Agreement is that both parties must agree that they will not ask a court to decide a disputed issue. The parties and counsel agree that if either decides to go to court, then both collaborative attorneys must withdraw from the case and the collaborative divorce process is terminated. This is important because while the process tends to be less expensive overall, it is very expensive to have to start over with a new attorney.
Another critical point of a collaborative divorce is that both parties must voluntarily disclose all financial and other relevant information. Therefore, both sides voluntarily exchange all relevant documents that would otherwise be discoverable under the court rules. Rather than casting a wide net to seek documents and other information, the attorneys in a collaborative setting can be more focused on what they ask for. This not only results in lowered costs, but also results in obtaining relevant information more quickly. If a party does not provide the requested information, this could be a basis to move the case out of the collaborative process and into court.
N.J.S.A. 2A:23D-5 details the required elements of a Participation Agreement:
- be in a record;
- be signed by the parties;
- state the parties’ intention to resolve a family law dispute through a family collaborative law process;
- describe the nature and scope of the family law dispute;
- identify the family collaborative lawyer who represents each party in the process;
- contain a statement that a family collaborative lawyer’s role is consistent with the Rules of Professional Conduct promulgated by the Supreme Court of New Jersey;
- set forth the manner by which a family collaborative law process begins and the manner by which it terminates or concludes;
- state that any family collaborative law communication of a party or a nonparty participant is confidential and subject to certain evidentiary privileges and how / when those privileges can be waived; and
- state the rules that govern the conduct of a family collaborative lawyer.
Joint Experts and Non-Lawyer Professionals
Another aspect of collaborative divorce is the ability to use joint experts or non-lawyer professionals to assist with resolution of the issues. For example, if custody of the children is an issue in the divorce the parties can select a joint mental health professional to either complete an evaluation or simply work collaboratively with the entire family to reach a positive result. Is there a need to investigate the value of a business? A forensic account can be retained by the parties. Since both sides are required to provide full disclosure of financial information, the expert is in a better position to review the documents, meet with the parties, and provide feedback to the attorneys in a quicker and often less formal manner. In traditional litigation, this process can take a year or more and is often plagued by multiple motions being filed to seek the cooperation of the business owner's spouse.
Perhaps the biggest advantage to collaborative divorce is that you and your spouse are the makers of your own destiny and you are not leaving these important decisions to a stranger in a black robe. If you happen to go to court, Judges will tell you that they lack the time and resources to fully understand your unique situation. Most judges never even represented a person in a divorce case before going on the bench. The more contentious cases end up in trial and oftentimes at the appellate division where the higher court overturns the decision of the trial judge. Then you may start over again. In addition to taking many years, the costs can be exorbitant.
Contact Experienced New Jersey Family Law Attorneys at LaBletta & Walters
If you are interested in learning more about Collaborative Divorce, contact the experienced attorneys at LaBletta & Walters for a consultation. Our experienced attorneys can explain to you the process involved and help you evaluate whether your case is appropriate for the Collaborative Divorce process.