For whom does the Collaborative Divorce Process work best for?

You and your partner may wish to proceed collaboratively if you:

• Desire the assurance provided by having legal representation throughout the process.
• Want to retain control over your own lives and the lives of your children.
• Want to divorce at your own pace rather than on the Court’s timetable.
• Wish to reach agreement through open discussions and co-operative problem solving
• Desire to build two functioning households that foster a successful co parenting relationship for the benefit of your children
• Do not want the threat of going to Court to influence your decisions
•  Desire your issues to remain private.

Why might one choose the collaborative process over mediation?

Some people, for various reasons, are uncomfortable negotiating against his or her spouse without help. In the collaborative process, that help is right there; in the room; with the client; every step of the way. While a mediator may provide some legal information, he or she does not advise either client. In a collaborative four way settlement meeting it is common for both clients and for both attorneys to brainstorm as many options as possible. Once all of the options for each of the issues have been discussed, parties are typically in a better position to engage in a productive “give and take” in reaching an agreement, acceptable to both.

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.

 

Twenty-Somethings are the New Teens

A recent article in the Wall Street Journal highlights the fact that the incidences of teen pregnancy are declining in the country and that today's unmarried 20-somethings are the new "teen" moms.  America's all-time high level of non-marital childbearing is now being driven by 20-somethings, consisting of 41% of all births.  A delay in "tying the knot" has risen steadily according to Census bureau figures which has resulted in the shift of unmarried parenthood from the teens to the twenties. But such later marriage (nearly age 27 for women and age 29 for men) has also helped to cut the divorce rate, which has been falling slowly since 1980.  And there is a lower incidence of divorce among college graduates who have achieved a higher socio-economic level than their non-college educated peers, whose divorce rate remains comparatively higher.

Annual dinner on April 25th NJ Collaborative Practice Group

The New Jersey Council of Collaborative Practice Groups will be holding their annual dinner on April 25th, at Maggiano's Little Italy in Bridgewater from 6pm to 10pm.  The focus will be the New Jersey Family Collaborative Law Act -- where we are now and where we are going.  We are going to begin the program with a panel of our Council leaders who will address where we are now, the importance of the New Jersey Family Collaborative Law Act and how it will benefit all of our professionals.  Valerie Brown, Esq. will then address where we are going and the critical steps to passage of the New Jersey Family Collaborative Law Act.

For whom is Collaborative Divorce the proper process choice?

Collaborative practice ensures the best possible chance for:

• Couples who are seeking to reconfigure their families in a way that protects children, offering their children the best chance to experience the benefits of BOTH parents in an environment of mutual respect and support.
• Better communication between ex-spouses and an opportunity to effectively co-parent. 
• A civil, rational result. 
• An agreement that gives BOTH spouses as much as possible without hurting the other. 
• Protection from the emotional and psychological damage to children and to each other often caused by animus and protracted litigation. 

Collaborative practice is NOT a process for people destined to destroy their families (I have not met one client for whom this is a stated goal) and it most certainly is not for spouses seeking to punish and/or obtain revenge.

What happens if one side or the other decides to play “hide the ball,” or is dishonest in some way, or misuses the Collaborative Divorce process to take advantage of the other party?

That can happen. There are no guarantees that a participant in the Collaborative Divorce process will not act in bad faith; just as there also are no guarantees in the litigation process. But you will be represented by a lawyer who will pay close attention to this issue. If she determines your spouse is being dishonest, she will make sure that both you and your spouse’s attorney know immediately. You can end the process and go to court. Also, the collaborative agreement requires a lawyer to withdraw upon becoming aware that her client is being dishonest, or participating in the process in bad faith. For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the lawyers have promised in advance that they will withdraw and will not continue to represent the client. The same is true if the client fails to keep agreements made during the course of negotiations; for instance, an agreement to consult a vocational counselor, or an agreement to engage in joint parenting counseling.

What if my spouse doesn’t cooperate and I want to go to court?

It is important to remember that in signing an agreement to engage in the collaborative process, you do not give up any rights, including the right to go to court. If it becomes apparent that your spouse is not cooperating with the process, and you need the security of court orders, you always have the option to withdraw from the process and engage in litigation – after having retained a new attorney.

Do I need an attorney to represent me if I select the Collaborative Divorce process?

Yes. However, your attorney has a limited scope in representing you. The representation is limited to collaborative negotiations towards reaching a settlement.

During the collaborative divorce process you and your spouse will be individually represented by collaboratively trained family law attorneys. The participants can choose any collaborative divorce attorney from an active collaborative divorce group. There are numerous collaborative divorce groups in the state of New Jersey. Typically, divorcing couples choose collaborative attorneys from the same geographical area in order to minimize travel. After you select an attorney, your attorney will discuss with you in further detail the collaborative divorce process and answer any specific questions that you may have. During this meeting you will receive the information necessary to decide whether the collaborative divorce process is right for you and your situation.

Attached is an interesting article from Cincinnati Divorce Attorney Maury White

INTERESTS VERSUS POSITIONS

Is a Collaborative Divorce less costly than a traditional divorce?

I like to think of the cost of a divorce in terms of financial and emotional cost. Usually, a collaborative divorce will be less expensive financially because you are not paying an attorney for multiple court appearances. When there are multiple team members involved, the actual financial cost may not be substantially less. However, there is no question that in the collaborative process, the emotional cost – for both you, your spouse, and your family – is substantially less.

How does the Collaborative Divorce Process work?

After the participants each hire a collaborative divorce attorney, everyone agrees in writing not to
go to court. This means that your collaborative divorce attorney will not enter a Court Appearance
on your behalf.

You meet privately with your attorney and the participants then schedule a series of joint
meetings. The number of meetings needed to bring your case to a conclusion depends upon your
circumstances. The meetings are designed to exchange all information, explore all options and to
determine the agreement that best suits this unique family. If there is an immediate concern, it will
be addressed at the meeting. Every meeting has an agenda and minutes are maintained.

The resulting divorce agreement, also called the Settlement Agreement, will ultimately be made
an order of the Court at the conclusion of the collaborative divorce process. This Settlement
Agreement becomes a court order.

Hiding assets during divorce

Check out  this is article on the topic of spouses  hiding assets during a divorce, from Janet Baker of the Collaborative Law Group of Southern Arizona.

Is Collaborative Divorce the best choice for me?

Collaborative Divorce isn’t for every person, or every case, or even every lawyer. However, it is worth considering if some or all of these principles and objectives ring true for you:
a) You want a civilized, respectful resolution of the issues.

b) The relationships you have created during your marriage are important to your future, including friends, extended family, and even your spouse.

c) You and your spouse will continue to parent your children together, and you want the best co-parenting relationship possible.

d) You want to protect your children from the harm associated with a conflicted, litigated divorce between their parents.

e) You have ethical or spiritual beliefs that place a high value on taking personal responsibility for handling conflicts with integrity.

f) You value privacy in your personal affairs and do not want details of your problems to be available in the public court record.

g) You value control and personal decision making and do not want to hand over decisions about restructuring your financial and parenting arrangements to a judge who may not realize what is important about your family.

h) You recognize the restricted range of outcomes and “rough justice” generally available in the public court system, and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.

i) You place as much or more value on your children and the relationships that will exist in your restructured family situation as you place on obtaining the maximum possible amount of money for yourself.

j) You understand that conflict resolution with integrity involves not only achieving your own goals, but also finding a way to achieve the reasonable goals of the other person.

k) You and your spouse will commit your intelligence and energy toward creative problem solving rather than toward recriminations or revenge—fixing the problem rather than fixing blame.

What is Collaborative divorce?

Collaborative divorce is a respectful and dignified process which supports your family's goals for a smoother transition to the next stage of your lives. Divorce is both an ending and a new beginning. The collaborative divorce process helps you anticipate your needs as you move forward, while prioritizing the future of your children, if children are involved. Through the COLLABORATIVE PROCESS you develop and evaluate options or alternatives while aiming to construct a sustainable divorce agreement. 

Happy New Year to All Clients and Colleagues!

Klaiman & Carney wishes all clients and colleagues a Happy New Year!