New Jersey Enacts Collaborative Family Law Option
New Jersey Governor Chris Christie signed a slew of bills into law on September 10, including the bill making major changes to alimony in New Jersey, a topic we discussed in July (see The End of Permanent Alimony in New Jersey?). Another family law bill was also signed that day. A1477, the New Jersey Family Collaborative Law Act, offers a non-adversarial way for parties to resolve the issues in their divorce, child custody dispute or other family law matter, outside of the courtroom. Collaborative family law is still fairly new in New Jersey and unfamiliar to many people. While it offers some distinct advantages, there are also reasons to be cautious before agreeing to the collaborative process.
As Assembly Bill 1477 recognizes, attorneys have been doing family collaborative law in New Jersey since at least 2005. What the law does is create uniformity as to what collaborative law is and what it isn’t, while giving official sanction to divorces accomplished outside of court through the collaborative process. Currently, only eight other states have a law authorizing divorce outside of court like this. The law also enacts legal protections for the confidentiality of the process to encourage candor and full participation in the process.
What is Collaborative Family Law?
Like mediation, collaborative family law is an alternative to litigation in which the parties get together and try to resolve their issues in a non-adversarial, collaborative framework. A major difference between mediation and collaborative law is that if mediation is unsuccessful, the parties merely continue on to court and work out their issues there. Collaborative law requires a deeper level of commitment at the outset. If the collaborative process is unsuccessful, the attorneys have agreed to withdraw from the case. The parties may continue on to court, but they must start over with new attorneys to represent them, which can make the entire divorce process take longer and cost more.
New Jersey Law Protects Confidentiality
The bill encourages full participation and candor by all parties to the collaborative process, which may include the divorcing couple and their attorneys as well as CPAs, financial planners, social workers, counselors, therapists and others. The new law clarifies that the collaborative process is confidential, and information used in the process may not be later used in court. Parties and nonparties are privileged from having to reveal any information in court that was disclosed in the collaborative process. Parties should still make sure they completely understand this aspect of the law and the terms of the collaborative agreement they enter into before offering any statements or other evidence which might otherwise not be admissible in court. It sometimes happens that people reveal information thinking it is privileged from discovery when it actually isn’t.
The new law also provides a list of ways the collaborative process can be ended when either party:
- Gives notice of intent to stop the process
- Files anything in court without permission of the other party
- Becomes subject to or obtains a domestic violence TRO or FRO
- Files an action for emergency relief to protect the health, safety, welfare or interests of a party
- Fires their lawyer without replacing him or her in accordance with the terms of the statute
- Fails to provide information necessary to resolve the dispute; or
- A lawyer withdraws from the process/representation
The New Jersey Family Collaborative Law Act is slated to go into effect 90 days after its enactment, or around December 10 of this year. Collaborative Family Law does not work for everyone and may not be the best approach to solving the issues in your divorce. Talk with your attorney about other cooperative, non-adversarial approaches to divorce and the process for an uncontested divorce.