You Finally Decided Upon Divorce. Could a Collaborative Approach Work Best for You?
We are in the midst of what some family attorneys refer to as “divorce season,” which marks a spike in divorce filings in the couple of months following the holidays. In fact, a financial article claims that the day after Valentine’s Day marks the beginning of the busy divorce season. With Valentine’s Day rapidly approaching, you may have decided to move on from your marriage. Divorce is often portrayed in the media as a melodramatic and scary experience. While divorce is a significant legal event, it does not necessarily have to be overemotional and daunting. Collaborative divorce is an approach that gives you control over decisions and may save you a large sum of money.
In 2014 Governor Christie signed the New Jersey Family Collaborative Law Act. A copy of the Act can be found here. In a collaborative divorce, an attorney is retained to assist the client in resolving family disputes in a voluntary, non-adversarial manner, without court intervention. See N.J.S.A. 2A:23D-2(a). The collaborative divorce process is similar to mediation in that it is an alternative option to litigation, but there are a few notable differences. In mediation, a neutral mediator tries to help adversarial parties reach a common agreement. With the collaborative approach, both spouses hire attorneys to advise them of their legal rights and settlement options. The “team” of professionals and spouses discuss goals to manage conflicts that arise together rather than each spouse focusing on “winning.”
The goal of the collaborative divorce process is for the spouses to sign a settlement agreement. The settlement agreement may address custody, property, visitation, or any other relevant topic. Each spouse hires a collaborative attorney and signs a participation agreement outlining their intent to participate in the process in good faith. If needed, mental health professionals or financial experts may be included in the process. All of the discussions in the “team” meetings between the spouses, attorneys, and other professionals are considered confidential. Once an agreement is reached, a brief appearance before a family court judge is made in order to approve the agreement. In the unfortunate event that an agreement cannot be reached, or if one spouse becomes too adversarial, the matter is sent to court and new attorneys will need to be hired to handle the case in court. Participation agreements for a collaborative divorce have a disqualification clause that states if an agreement cannot be reached, new attorneys must be retained for litigation of the divorce proceeding. This way, there is an incentive for all of the “team” members to come to a resolution.
Some of the benefits of a collaborative divorce include privacy, avoiding uncertain outcomes in litigation, lower legal expenses, being in an informal setting, less stress, and facilitating open communication between spouses. It is important to keep in mind that although collaborative divorce is not used to “get even” with the other spouse, both spouses do not have to agree to everything from the start. Collaborative divorce also does not force one spouse to agree to unfair terms. Each collaborative attorney informs their client of the best settlement options. Then at “team” meetings, constructive conversations are able to be held. Collaborative divorces are meant for ex-couples that can communicate with each other but need assistance in coming to an agreement on specific aspects of the divorce. If children are involved, a collaborative approach may also be beneficial because an emphasis will be placed on constructive discussions to prepare the children for post-divorce life. However, if abuse or combative behavior has been a pattern between the former partners, then a collaborative divorce may not be the best way to proceed.
If you are interested in learning more about the collaborative divorce approach, or other avenues to proceed with divorce, qualified and experienced family attorneys at Hoagland Longo are available to assist you. Please do not hesitate to contact us at 732-545-4717 to schedule a free initial consultation.