Overshadowed by New Jersey’s enactment of alimony reform, on which we have previously blogged and will shortly provide an update, on September 10, 2014 Governor Christie also signed into law the New Jersey Family Collaborative Law Act. Collaborative Law is a form of alternative dispute resolution where, as described by the law, an attorney is retained “for the limited purpose of assisting his client in resolving family disputes in a voluntary, non-adversarial manner, without court intervention.” In other words, the goal and stated intent by both parties is to resolve the matter without litigation, including the provision of full disclosure of information/documentation without the need for formal discovery. We previously blogged on the positives and negatives of this form of dispute resolution, so the purpose of this blog entry is really to provide the highlights of the new law.
As a general matter, a collaborative law process terminates if either party involved commences a proceeding related to the subject matter at issue (divorce, custody, etc.) other than for the court’s entry of a settlement agreement. Parties and non-party experts or neutrals are protected from the disclosure of communications, similar to that covered in mediation, with various exceptions delineated in the law. The collaborative law “participation agreement” must, among other things, be in a record, signed by the parties, state the parties’ intention to resolve the dispute through the collaborative method, detail the confidential nature of communications and applicable evidentiary privilege, and describe the nature/scope of the dispute, as well as how it commences/ends.
Interestingly, the agreement must identify the collaborative lawyer representing each party and contain a statement limiting the collaborative lawyer’s role. The lawyer and lawyers in that same firm, if any, shall not continue to represent the party in that family law dispute if the dispute is submitted to a tribunal for adjudication.
To ”conclude” the process, the law provides there must either be a signed settlement agreement, or a termination of the process. A termination occurs in one of many ways including:
1. when either party gives notice in a record that the process has ended (with or without cause).
2. a party files a document without the agreement of all parties that initiates a proceeding related to the family law dispute.
3. either party is subject to, or obtains, a temporary or final restraining order against the other party under the Prevention of Domestic Violence Act.
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.
5. A party discharges a collaborative family lawyer. If this occurs, or the lawyer ceases representation, the process continues if, “not later than 30 days after the date of notice of the discharge or cessation of representation is sent to the parties”, the unrepresented party retains a successor lawyer and in the amended collaborative law agreement, the parties consent to continue and the successor lawyer confirms representation of the party.
6. A party fails to provide information necessary to address issues in dispute, and the other party chooses to terminate the process as a result.
7. A family collaborative lawyer ceases further representation of a party.
The law takes effect on the 90th day after enactment.
Any form of alternative dispute resolution can be a major positive over traditional litigation, especially considering the benefits of a private resolution from a cost, time and emotional standpoint. Collaborative law is truly a great concept, but parties must be fully and completely reasonable, and willing to act in good faith with each other for it to truly work. Two like-minded people – on an equal playing field without one party overpowering the other (financially, emotionally or otherwise) may be able to effectively proceed with the collaborative divorce process. Other situations may not prove as ideal.
Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or firstname.lastname@example.org.
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