On September 10, 2014, Governor Christie signed the New Jersey Family Collaborative Law Act, which allows parties to resolve family disputes in “...a voluntary, non-adversarial manner, without court intervention…” The process is done with the help of independent counsels, i.e., family law attorneys and other third party professionals. This law allows couples the opportunity to resolve their divorce through a series of private meetings, similar to mediation. It's also cheaper, faster, and much less adversarial than traditional divorce litigation.
In spite of these positives, collaborative divorce has been slow to take hold in the Garden State. It's hard to say for sure why this is the case, but it may have something to do with the high level of commitment required by the collaborative divorce process. Unlike mediation, collaborative divorce is done only with one's attorneys, and other third party professionals such as accountants, social workers and psychologists. This is different than mediation, which is facilitated by a certified mediator, with or without the presence of attorneys. A mediator is simply a neutral third party who helps facilitate an agreement, but the spouses are ultimately in control of the entire process. Either spouse can choose to end the mediation at any point without any financial and/or legal consequences.
Collaborative divorce, on the other hand, does have consequences that could end up costing you in the future. If you decide to end the collaborative process and proceed with litigation, you will both need to obtain new attorneys, because the law forbids attorneys who participated in the collaborative law process from representing those clients in litigation. Furthermore, any lawyers from those attorneys' firms are also prohibited from representing you in litigation. Losing their attorney is not something most divorcing spouses are willing to risk. Starting all over with someone new, especially when you've invested a lot of time and money with another attorney, is just too much of a commitment for most couples.
Some other important considerations are the level of friendship and commitment you have to each other. Some divorcing couples are able to remain friendly, but it's a whole other thing to sit across from each other meeting after meeting to discuss highly sensitive issues like custody and alimony. Your attorneys are there to provide legal advice and act as your personal advocates, but they aren't there to act as referees. Along with the ability to conduct civil discussions, each spouse must be committed to full disclosure of all necessary information, and come to each meeting fully prepared with the needed documentation. Any pending issues between you and your spouse, even minor disagreements or personal differences, may get in the way of a successful resolution through collaborative divorce. Whether a collaborative divorce will work for you depends on many factors, but it's best to discuss all your available options with an experienced divorce attorney. For more information on your divorce rights and legal options, please speak with the attorneys of Villani & DeLuca, P.C.