Reviewed by Dominic A. Tomaio, ESQ.
Key Takeaways
- Collaborative divorce is a voluntary, out-of-court process where each spouse hires a specially trained attorney and everyone agrees to settle without litigation.
- In New Jersey, it is authorized by the Family Collaborative Law Act, N.J.S.A. 2A:23D-1 et seq.
- Communications during the process are confidential and privileged under the Act.
- If the process fails and the case goes to court, both collaborative attorneys must withdraw.
Divorce can be a contentious and emotionally distressing process for couples. However, it does not always have to be that way. If you want to avoid going to court and the disputes that often come along with litigation, you have several alternative options. Many couples are choosing collaborative divorce instead of going to court for the various benefits that it offers. If you have questions regarding what this process is or how it works, reach out to an experienced Morris County, NJ collaborative divorce attorney today.
What is Collaborative Divorce?
Collaborative divorce is an ADR (alternative dispute resolution) method that is becoming increasingly popular across the United States. Traditionally, during a divorce, the spouses will go to court and settle the various topics of a divorce through litigation. Typically, the presiding judge will make rulings on relevant issues like property division, alimony, child custody, and child support.
This is a voluntary, out-of-court process in which each spouse will work with a specially trained attorney, and everyone signs an agreement to settle the divorce without litigation. In New Jersey, this process is governed in accordance with the New Jersey Family Collaborative Law Act (N.J.S.A. 2A:23D-1 et seq.), which makes collaborative communications confidential and privileged. Additionally, this act requires both lawyers to withdraw from the case in the event that negotiations fail and the case ultimately ends up in court.
However, collaborative divorce allows the couple to avoid the time, money, and stress that litigation requires. The process is designed to reduce the financial and emotional toll that divorce can have, and make it less combative and more cooperative. Collaborative divorce relies heavily on honest communication and respect.
New Jersey Has a Statute Governing Collaborative Divorce
Collaborative divorce in New Jersey is not just a private arrangement; it is authorized and structured by the New Jersey Family Collaborative Law Act, N.J.S.A. 2A:23D-1 et seq., enacted in 2014. The Act gives the process legal footing and two protections couples often do not realize they have:
- Confidential and privileged communications: Anything said during the collaborative divorce process is considered confidential and protected by evidentiary privilege, so it typically cannot be used later if the divorce proceeds to litigation.
- A defined, limited attorney role: The Act treats each lawyer as retained for the limited purpose of the collaborative divorce process. As such, if the collaborative divorce process fails, each attorney is required to step aside, and the couple would need to obtain new legal representation.
How Does Collaborative Divorce Work in NJ?
The process of collaborative divorce begins when each spouse involved retains an attorney. The lawyers should be trained in collaborative divorce. All parties, including the couple and their respective representatives, will then sign a participation agreement stating that they will work together in good faith and make an effort to avoid going to court.
Instead of fighting against each other, the spouses and their attorneys aim to work together to foster an environment of mutual respect and collaboration. There must be full transparency between parties, and both spouses are expected to disclose all relevant financial and personal information.
This process often benefits from the inclusion of third-party resources like financial experts, child specialists, and mental health professionals. All individuals involved share the same goal: to help the spouses reach a fair and amicable resolution for all relevant issues.
What Happens During the Collaborative Divorce Process?
The parties will meet for a series of structured discussions where they will share their needs and wants before negotiating based on the information shared and the testimony from the professionals, including the attorneys. The parties are encouraged to come up with creative solutions tailored to their specific needs. In a traditional divorce, judges generally make definitive and clear rulings on all matters. Collaborative divorce allows the spouses to be flexible and create unique agreements.
What if an Agreement Cannot Be Reached?
If the spouses cannot agree on a settlement, the case will have to go to court. Both legal representatives will be required to withdraw from the case, and the couple must acquire new representation.
This requirement is built into the law, and it is one of the defining aspects of collaborative divorce. Because the attorneys cannot represent the clients in the event negotiations fail and the case proceeds to trial, everyone involved, including the attorneys, is financially and professionally invested in reaching a settlement rather than proceeding to court.
Contact an Experienced New Jersey Divorce Attorney
Going through a divorce can be an incredibly overwhelming and difficult process to navigate, which is why it’s in your best interest to connect with an experienced attorney with Townsend, Tomaio, Newmark & Clancy, LLC. If you have questions or concerns about the collaborative divorce process, contact us today to speak with a skilled family law attorney today.
