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The Collaborative Divorce Process in New Jersey: Can a Conference Table Replace the Courtroom?

TableMost of us have watched the opening scene of the 2005 summer comedy, “Wedding Crashers”, where John Beckwith, played by Owen Wilson, and Jeremy Grey, played Vince Vaughn, serve as mediators in an acrimonious divorce between the equally recalcitrant  Mrs. Kroeger, played by Rebecca De Mornay, and Mr. Kroeger, played by Dwight Yoakam. Nine years after moviegoers were treated to one of the funniest incidents of  alternative dispute resolution ever depicted in film, last week the New Jersey Senate Budget and Appropriations Committee unanimously passed The Family Collaborative Law Act, S1224, which will now go to the full Senate.  New Jersey would become the eighth state that would statutorily recognize such a process. Other states  that do so include Alabama, Florida, Hawaii, Nevada, Ohio, Texas, Utah, Washington and the District of Columbia.

Only a court can grant a divorce.  The Court Rules require litigants to acknowledge that their attorney has informed them of the availability of alternate and/or complimentary dispute resolution methods, including mediation and arbitration, at the time of the filing of the initial pleadings, which reflects a commitment by this State’s Supreme Court to encourage the use of other means by which to resolve disputes than litigation in a courtroom. Under  The Family Collaborative Law Act, each spouse would retain their own independent lawyers to represent each of them exclusively in the collaborative law proceeding. The proposed legislation provides that the attorneys used in the collaborative law process are to be disqualified from participating in the litigation should the collaborative law process breakdown. According to Section 7(b): “A collaborative family law process terminates when :

(1) gives notice to other parties in a record that the process is ended, which party may do with or without cause; or

(2) files a document without the agreement of all parties that initiates a proceeding related to a family law dispute ; or

(3) either party is subject to, or obtains, a temporary or final restraining order in accordance with the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et seq.)’ or

(4) an action is commenced requesting that a tribunal issue emergency relief to protect the health, safety, welfare, or interests of a party or the defense against such a request is commenced; or

(5) except as otherwise provided by section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), a party  discharges a collaborative family lawyer; or

(6) a party fails to provide information pursuant to  9 of P.L. , c. (C. ) (pending before the Legislature as this bill), that is necessary to address the issue in dispute, and one of the parties chooses to terminate the collaborative law process as a result; or

(7) a collaborative family lawyer ceases further representation of a party.

Section 9 addresses the disclosure of information and provides: “Except as provided by law, during the collaborative law process, a party shall, in good faith, provide timely, full, and candid disclosure of information related to the family law dispute without formal discovery. A party also shall update promptly previously disclosed information that has materially changed. The parties may define the scope of disclosure during the collaborative law process except as provided by law.  other than this act.”  Failure to comply with this section is a basis for the termination of the collaborative law process.

Currently, if mediation or arbitration fails for any reason,communications made during the mediation/arbitration remain confidential, but both parties can litigate using their same attorneys from the mediation/arbitration. Benjamin Franklin is said to have coined the phrase: “Time is money,” and the loss of one’s counsel after the breakdown of collaborative law process has the potential to be financially devastating to one or both litigants.  I am also reminded of a  quote that President Abraham Lincoln used this same month 150 years ago in reply to a Delegation from the National Union League who were urging him to be their presidential candidate when he was seeking election of second term in the midst of civil war.  President Lincoln responded to the crowd by saying that “it was not best to swap horses when crossing streams.” Much like a stream,  a divorce can have many changing currents. The dissolution of a marriage is undoubtedly an emotionally charged time for the parties involved whether the issues involve the parties’ finances or the custody of the children. The selection of the right counsel when navigating these troubled  waters may be one of most important decision of someone’s lifetime.  The experienced attorneys at James P. Yudes, P.C. are here to assist you in this regard.