The Pitfalls of Collaborative Family Law
Thanks to the 2015 amendment to Court Rule Court Rule 5:4-2, it is now not only mandatory that parties filing for/receiving a divorce complaint be notified as to the availability of the Alternative Dispute Resolution (ADR) methods of mediation and arbitration, but now mandatory that the ADR method of collaboration also be included in this list.
While we certainly believe that divorce collaboration can work for many couples when it comes to deciding family law and divorce issues like child custody, alimony, and the division of assets, we are also hesitant to recommend it for many other divorcing couples for a variety of reasons which we will discuss below.
When it comes to your divorce, and deciding how you and your partner want your divorce and its related issues to be decided, it is important that you not only understand the benefits of ADR methods like mediation, arbitration, and collaboration, but also that you understand some of the downsides and potential pitfalls involved with some of these methods.
How Does Divorce Collaboration Work? Collaborative Divorce Lawyers Chester, NJ
Collaboration is perhaps the most similar of all ADR methods to traditional divorce in the sense that both parties retain separate legal counsel in order to guide, advise, and represent their individual needs and interests throughout the process. Each party and their attorney present their needs and arguments to the other, and (often with the help of neutral third-party “judges”), work to find acceptable and fair resolutions to their divorce agreements.
In order for divorce collaboration to work, both parties must be committed to resolving their divorce disputes in a highly communicative, honest, and respectful manner, and ultimately to conduct themselves in good faith. When this is true for both parties, collaboration can be a great way of resolving a divorce as it is much more private than divorce litigation, and proceeds according to the timelines and goals established by the divorcing couple rather than the timelines set forth by court rules.
However, it is this same requirement for honesty and good faith conduct that can often result in a great deal of abuse by one party or the other during the collaboration process.
The Pitfalls of a Morris County Collaborative Divorce
When one thinks of a divorcing couple, one probably does not think of two people who are willing to communicate honestly and openly with one another, who are willing to set aside their differences “for the greater good”, or people who do not have scores to settle when it comes to making up for perceived-or-otherwise offenses or slights.
While such an opinion may be a stereotype, it probably is for a good reason, and this is where the issues with the collaborative process arise. As collaboration takes place outside of the court system, there is no method for forcing the disclosure of specific information, or ensuring that any information that is actually disclosed is complete and accurate. Instead, divorce collaboration is based on the idea that both parties will be completely honest and transparent with one another.
In our experience as Morris County divorce attorneys, while many of our clients have found success through the collaborative divorce process, many others have not. There is very often one more dominant party or a party with a much greater degree of control of the relationship, and such a dynamic can easily be abused during the collaboration process. Additionally, one party or the other may be much more financially savvy than the other, again something that can be easily abused during the collaborative divorce process which has no legal method for guaranteeing full and accurate financial information is shared.
Finally, if at any point the collaborative divorce process fails, and the couple instead needs to decide their issues in a public court of law, the attorneys they worked with legally cannot then represent them in their public court divorce proceedings. This means starting the divorce process over essentially from scratch, and communicating to your new attorney everything that you had already communicated to your collaborative divorce lawyer.
So while divorce collaboration certainly has its benefits, and has worked for many couples, we feel that it is also important that our clients understand that it is not a “one-size-fits-all” solution, and has some potentially very serious drawbacks for couples who are not completely prepared for what it entails.
Contact Our Morris County Divorce Lawyers Today
At The Law Office of Townsend, Tomaio & Newmark, our attorneys have extensive experience resolving family law and divorce issues in an effective. attentive, and knowledgeable manner for clients in towns across New Jersey and Morris County, including Chester, Chatham, Mendham, Harding, Morris Township, and Morristown.
Whether you ultimately decide to resolve your divorce through litigation, negotiation, collaboration, mediation, or arbitration, our firm has the training and experience necessary for representing you and your family in any of these manners. Especially if you are still unsure if an ADR method will work for your divorce or if traditional litigation may be necessary, we are standing by to discuss your unique needs, concerns, and situation in a free and confidential consultation.
To speak with our legal team in a free and confidential consultation regarding your divorce, a specific divorce settlement agreement, or your options and considerations when it comes to using an ADR method to resolve your divorce, please contact us online, or through our Morristown, NJ office at (973) 840-8970.