Collaborative Divorce May Become Law in New Jersey
Over the past decade, the legal field has seen a steady rise in the use and acceptance of “Collaborative Law,” which allows opposing parties to avoid formal court proceedings and settle their disputes in a process similar to mediation. Two identical Senate and Assembly bills titled “The Family Collaborative Law Act” (S-1224 and A-1477) are moving their way through the New Jersey Legislature. The bills are based on a proposal of the New Jersey Law Revision Commission and the National Uniform Law Commission. A collaborative divorce law already exists in Alabama, Florida, Hawaii, Nevada, Ohio, Texas, Utah, Washington and the District of Columbia. New Jersey would join them if the Act that is under consideration is passed into law.What is a Collaborative Divorce?
Collaborative Divorce, should it become law, would be an alternative to traditional divorce proceedings if the bill is to become law. It is a voluntary, non-adversarial settlement in which the parties, with the assistance of their respective attorneys, seek to negotiate in good faith a resolution that is mutually acceptable without the involvement of the court. Participants can proceed with a collaborative divorce after those involved have signed a collaborative family law participation agreement and are represented by collaborative family lawyers. Each party, represented by their attorney, meets with the other party in the dispute with their attorney. Further, there can be participation by nonparty participants that are professionals in their fields, including certified financial planners, certified public accountants, licensed clinical social workers, psychologists, licensed professional counselors, licensed marriage and family therapists and psychiatrists. Issues that can be resolved through this process include things such as property division, custody of children/visitation rights and spousal support.How is Collaborative Divorce different than traditional divorce proceedings?
The Collaborative Divorce process is distinct from traditional divorce proceedings. For example, the Collaborative Divorce proceedings do not occur in a courtroom. Rather, the proceedings can take place in a meeting room or any other agreed upon space.
Further, discovery is not the formal process that occurs in traditional divorce proceedings. However, both parties must commit to providing timely, full and candid disclosure of all information related to the dispute. Parties are required to provide prompt updates of any changed information. Failure to provide this information can result in a termination of the Collaborative Divorce process.
With regard to communications during the Collaborative Divorce process, a Collaborative Family Law communication is confidential as agreed on by the parties to the dispute. Any communication provided by a party or nonparty participant is privileged and is not subject to discovery or admissible in evidence if the proceeding fails and the case moves into court. Any signed settlement resulting from the process is legally binding and recognized in a court of law.What if the Collaborative Divorce process does not result in a resolution?
When a Collaborative Divorce proceeding fails, the case can and will subsequently proceed in Court. To conclude a Collaborative Divorce proceeding, there must be either a resolution of the dispute through a signed settlement agreement or a termination of the proceeding altogether. The process terminates if: 1) a party gives notice to other parties on the record that the process is ended, which a party may do with or without cause, 2) a party files a document without the agreement of all parties that initiates a proceeding related to the family law dispute without the agreement of all parties, 3) either party is subject to or obtains a restraining order of any kind, 4) an action for emergency relief is requested from a tribunal to protect the health, safety, welfare, or interests of a party, 5) a party discharges their collaborative family lawyer, 6) a party fails to provide information that is necessary to resolve the dispute and this leads to another party terminating the collaborative process or 7) a collaborative family lawyer ceases further representation of a party. The attorneys on both sides of the proceeding would contractually limit the scope of their representation to achieve a resolution through this non-adversarial process. Therefore, if litigation ensues, the attorneys for both parties must withdraw from representation. The parties would need to retain other counsel for the litigation should they desire representation.
If Collaborative Divorce becomes law in New Jersey, it will provide an alternative to traditional divorce proceedings for those facing or involved with divorce. In the meantime, parties and their attorneys have the ability to approach their divorce proceedings in a way that is designed to minimize conflict and the prospect of protracted litigation, and to focus on desired outcomes. Those considering or involved in divorce can contact our office to discuss their options and formulating an approach to their matter suitable for them.