Many people choose to end their marriages through a collaborative process rather than divorce court. In New Jersey, the law allows couples to dissolve their marriages through alternative dispute resolution (ADR) to avoid costly and time-consuming litigation. ADR generally involves some form of negotiation, mediation, and/or arbitration.

Last week, the New Jersey Senate Budget and Appropriations Committee passed a bill that would provide a uniform ADR approach to Collaborative Law in New Jersey, including protection of confidentiality of the process. The New Jersey Family Collaborative Law Act would encourage couples to negotiate a settlement while foregoing adversarial court proceedings.

The bill would require spouses to disclose information about their finances and other relevant issues during the process. Communications between divorcing spouses and their attorneys, as well as communications involving therapists and other professionals, would be confidential, except where public policy requires disclosure (child abuse, criminal misconduct, and assaultive behavior).

Litigation would remain possible as a last resort should the collaborative process fail to result in a divorce agreement. The collaborative negotiations would also cease if a domestic violence protection order is obtained, among other circumstances. If any such situations arise, the collaborative divorce attorneys would exit the case and the divorcing spouses would have to work with brand new legal counsel. The process works because each party agrees to forego a “first strike” litigation option, yet the option remains if circumstances require. The key sacrifice is that the original lawyers could not remain in place if the Collaborative Divorce process breaks down.

Not all parties and situations are appropriate for Collaborative Divorce. It is the lawyers’ responsibility to explain the process to prospective clients and to make sure that the parties give their “informed consent”. It is also their ethical responsibility to refuse Collaborative Divorce as a process option if they deem a party or situation unsuitable for Collaborative Divorce.

The full New Jersey Senate will hear the bill now that it has been passed by the committee.

Eight states already have similar laws in effect. Supporters of the bill in New Jersey believe that if enacted the law would better allow families to achieve settlements in a confidential manner while avoiding the costs and hostility associated with adversarial litigation.

Collaborative divorce now joins negotiations, mediation, and arbitration on the roster of approved and popular ADR techniques here in New Jersey. However, parties must proceed with caution in assessing and choosing their process options. It is wise to discuss these issues with a New Jersey Supreme Court Certified Family Law Specialist to be sure that you choose wisely and well. You are well advised to protect yourself and your children and to get the best results possible regarding financial support issues and property interests.

Source: 

New Jersey Law Journal, “Collaborative Divorce Bill Cleared by Committee, Heads to Full N.J. Senate,” Michael Booth, June 6, 2014