Thanks to the 2015 amendment to Court Rule 5:4-2, parties filing for divorce must be notified of their options. It is now mandatory to include the Alternative Dispute Resolution (ADR) method of collaboration alongside mediation and arbitration.
While divorce collaboration works for many couples, it is not always the best fit. It can be an effective way to decide issues like child custody, alimony, and the division of assets. However, we are hesitant to recommend it for everyone due to specific risks and potential pitfalls.
When deciding how your divorce issues should be resolved, you must understand both the benefits and the downsides of ADR. This article outlines the potential pitfalls involved with the collaborative process.
How Does Divorce Collaboration Work?
Collaboration is similar to traditional divorce because both parties retain separate legal counsel. These attorneys guide, advise, and represent their individual interests throughout the process. The parties often work with neutral third-party “judges” or experts to find fair resolutions. For this method to succeed, several conditions must be met:
- Both parties must be committed to a highly communicative and respectful process.
- There must be an agreement to conduct all negotiations in good faith.
- Both spouses must be willing to be completely honest and transparent.
When these factors are present, collaboration is a great option. it is more private than litigation and proceeds according to your timeline rather than court rules. However, the requirement for good faith can also lead to abuse.
The Pitfalls of a Morris County Collaborative Divorce
The collaborative process presents unique challenges because it takes place outside of the court system. This lack of judicial oversight can lead to three major issues:
1. Lack of Forced Disclosure
In a courtroom setting, there are legal methods to force the disclosure of information. In collaboration, there is no such mechanism. You are relying entirely on the idea that your spouse will be honest. If one party hides assets or provides inaccurate data, the process breaks down. There is no legal guarantee that the information shared is complete or accurate.
2. Power and Financial Imbalances
In our experience as Morris County divorce attorneys, we often see a “dominant” party in a relationship. This dynamic can easily be abused during collaboration. Similarly, if one spouse is more financially savvy, they may take advantage of the other. The lack of a formal discovery process makes it difficult to protect the less-informed spouse.
3. The Cost of Failure
Perhaps the most significant risk involves the “disqualification clause.” If the collaborative process fails, your attorneys legally cannot represent you in a public court of law. This means:
- You must start the divorce process over from scratch.
- You must hire a new attorney and pay new retainer fees.
- You must re-communicate your entire history and goals to a new legal team.
Contact Our Morris County Divorce Lawyers Today
At Townsend, Tomaio, Newmark & Clancy, our attorneys have extensive experience in litigation, negotiation, collaboration, and mediation. We represent clients across New Jersey, including Chester, Chatham, Mendham, and Morristown.
We are standing by to discuss your unique needs in a free and confidential consultation. Whether you need an ADR method or traditional litigation, we can help you determine the right path for your family. Contact us online or call our Morristown office at (973) 840-8970.
