Collaborative Divorce in New Jersey – A More Advantageous Way to Get Divorced
The Collaborative Divorce Process is a relatively new way in which the parties may obtain a divorce. Although it has been around for years, I say relatively new, because it is only during the past decade or so that the process has been recognized and utilized to any degree. The Collaborative process is an alternative to a contested or litigated divorce that proceeds through the court system.
- It is less expensive than the litigated process because the parties are committed through written agreement to settling their issues.
- It creates an amicable atmosphere conducive to settlement.
- The parties control the entire process – not the court; the court is not involved until after a comprehensive marital settlement agreement (MSA) is reached.
- A level playing field is established where neither party is disadvantaged and where a forum exists with much less emotional stress, fear or anxiety.
In the Collaborative Process, the parties are represented by counsel, but at the outset sign a “Participation Agreement”, wherein they promise to affirmatively and amicably move toward a resolution of their issues. Everything in the process is transparent and open, and all is “laid out on the table”. By way of example, instead of one party having to compel in Court the other party to produce financial documents so that appropriate asset distribution and/or alimony can be determined, everything is freely and voluntarily submitted thus avoiding the very expensive and time consuming process of proceeding in Court to compel the other party to do this. Another brief example: many times during a litigated case, one party refuses to provide adequate support to the other party while the case is pending. As a result, the attorney for the disadvantaged spouse would apply to the Court for pendente lite support and other relief. This is also an expensive process which can be avoided through the Collaborative Process.
A major advantage of the collaborative process, is that children are a priority. The parties are committed to reaching a resolution that enhances the advantages to the parties’ children.
The Difference Between Collaborative Divorce and Divorce Mediation
In the Collaborative Divorce Process, from the outset, the parties’ attorneys are involved.
With Mediation, spouses are essentially negotiating on their own, facilitated and guided by the specially trained mediator. The mediator cannot provide legal advice or advocate for either party. If you are more comfortable with having an attorney at your side throughout the divorce, then the collaborative route would be more appropriate. If you feel you only need to have the attorney consulted from time to time, or at the end of the mediation process, mediation might work for you. In either case, the parties must be committed to work towards a resolution of their issues. Frankly, sometimes this is just not possible, either due to bitterness, anger, or the refusal of one or both parties to act reasonably, thus requiring litigation through the Court system.
Another advantage of the Collaborative Process is the availability of mental health professionals to aid and guide the parties through their divorce which is especially helpful when there are possible custody and parenting time issues. These professionals are highly trained in the collaborative process and actually may sit in at meetings between the parties and counsel to offer their assistance, make proposals, and aid in the overall resolution of the matter.
Collaborative Divorce and Divorce Mediation have in common a commitment to arriving at a complete and fair settlement for the parties and their families. Through both processes, there is reliance on the complete and free exchange of all relevant financial and other information.