Governor Chris Christie signed into law the New Jersey Collaborative Law Act (the “Act”) on September 10, 2014. The intent of the legislation is to provide uniformity in collaborative law throughout the State in family law disputes. Collaborative law affords parties a way to resolve family law disputes without intervention of the courts. The parties work with a team of professionals to reach a settlement agreement. Certain prerequisites must be met in order for the parties’ settlement to be valid. The individuals in the dispute must have a signed a collaborative family law participation agreement that, among other things, identifies the collaborative family lawyer who represents each party in the process, states that a collaborative family lawyer’s role is limited, sets forth the manner by which a collaborative family law process begins and the manner by which it terminates, states that any collaborative family law communication of a party or a nonparty participant is confidential and subject to an evidentiary privilege, and that the privilege may be waived only expressly and by both parties or in the case of a nonparty participant, by the nonparty participant having the right to exercise the privilege. Parties should be aware of the limited role of the collaborative lawyer and the ramifications of such, if the parties do not reach a settlement agreement. Like a traditional family law dispute, both parties retain their own attorney to assist them in the collaborative process. The Act states that the collaborative lawyer is retained “for the limited purpose of assisting [the] client in resolving family law disputes in a voluntary, non-adversarial manner, without court intervention.” This means that if the dispute becomes litigious, the collaborative lawyer is disqualified from continuing to represent their client. In other words, the parties will have to start the process anew and seek new attorneys. Participation in the collaborative process is voluntary and cannot be required by the parties or the court. This is another requirement that an individual considering the collaborative process must contemplate. Terminating the collaborative process can be achieved in many ways, most simply by doing nothing to participate despite having entered into an agreement to participate. Thus, having a signed participation agreement does not guarantee or require participation, and the parties could be forced to seek resolution from the courts. There are other requirements of the Collaborative Law Act that should not be overlooked when considering which approach to employ to resolve a family law dispute. For example, the privilege protections and the mandatory full disclosure requirements. Since the communications between the parties involved in the collaborative law process are confidential a party may not unilaterally waive the privilege. As a result, information gleaned through the collaborative process may not be used in court. Also, if full disclosure is not given, failure of either of the parties to do so may affect the validity of the agreement. Agreeing to these requirements can have a significant effect on your case if the matter requires intervention of the court. Collaborative law may be appropriate for parties seeking an amicable resolution to their family law dispute, but the reality is that we live in an adversarial world. Determining which approach to employ in your family law dispute can be difficult. If you require experienced matrimonial counsel, the Law Office of James P. Yudes, P.C. has the expertise and knowledge to assist you.
Posted in: Collaborative Law, Other Family Actions, Procedure and Uncategorized Tagged: collaborative law, divorce, mediation and settlement October 3, 2014 Updated: July 13, 2020 2:39 pm Comments are closed. Contact Us (973) 467-3700
James P. Yudes A Professional Corporation
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