What happens if a participant is dishonest or uncooperative in some way, or misuses the collaborative divorce process?

In the participation agreement, the divorcing couple must be mutually respectful and agree to have an open and honest exchange of information.

If a determination is made that one of the parties is dishonest or fails to disclose pertinent information, the attorneys have an obligation to make everyone at the table aware. This may lead to a breakdown of the collaborative process due to the good faith as well as bad faith disputes. In the event of a breakdown your collaborative attorney cannot represent you in the court process and you may incur additional fees to retain another attorney.

The collaborative participation agreement requires the collaborative attorneys to withdraw from representation if the participant is dishonest or acting in bad faith.

New Jersey Family Collaborative Law Act

For those of us involved in the collaborative movement, participation in the effort to secure the passage of the New Jersey Family Collaborative Law Act ("NJFCLA."), affords us with the opportunity to formally add collaborative practice to the alternative dispute methods currently recognized by the courts as another option available to parties seeking to divorce.  

Challenges to DOMA: Impact on Divorce and Same-Sex Couples

The United States Supreme Court recently heard oral arguments in two of the most high profile cases in recent memory.  The case Windsor v. United States involved a challenge to the Federal Defense of Marriage Act (“DOMA”).  Hollingsworth v. Perry, asked the Court to strike down California’s “mini-DOMA”, known as Proposition 8.  DOMA provides that no state is obligated to recognize same-sex marriages performed in other states. It also provides that for federal purposes “marriage” is a legal union only between one man and one woman.  This Act has an impact on 1,138 federal laws.  Statistics on the growth of same-sex relationships highlight the importance of these cases.

According to the 2010 census, there are approximately 646,000 same-sex couples in the United States, an increase of over 50% from the 2000 Census. Of these same-sex couples, about 132,000 are married.  Same-sex marriage is legal in 9 states and the District of Columbia, and 8 other states recognize domestic partnerships or civil unions.  New Jersey is among those states recognizing civil unions of same-sex couples.  The remaining 33 states do not recognize same-sex marriages, civil unions or domestic partnerships at all.

Until the Supreme Court decides these cases, many questions about the legal status of these formal same-sex relationships remain open.  One of these issues has not received much publicity, but can have a severe impact on theses couples. What happens when a same-sex couple that was legally married in one state seeks a divorce or dissolution in a state that does not recognize these marriages or civil unions?  We know that many couples change their state of residence during for economic, employment and a variety of personal reasons.  When Stuart Rabner, now chief justice of New Jersey’s Supreme Court, was Attorney General of New Jersey, he issued a directive stating that marriages in other states will be treated as civil unions in New Jersey.  But what happens when a couple moves to one of the 42 states that does not recognize same-sex marriages, civil unions or domestic partnerships or may even prohibit them?  The lives of same-sex couples could be in limbo indefinitely.

It is not clear that the Court will even address this issue.  For example, the Court could decide that Section 3 of DOMA—the rule that says the federal government does not recognize same-sex marriages—is unconstitutional, but not strike down Section 2 of DOMA—the part of the law that says individual states do not have to recognize these marriages.

So it is especially important for same-sex couples to protect themselves as best they can.  One way to do this is to enter into a Prenuptial Agreement before getting married or entering into a civil union. That way, if a same-sex couple seeks a divorce from their marriage or dissolution of their civil union, but is not immediately able to obtain one, at least the Agreement will bind them contractually and effectively establish enforceable economic rights and obligations.