Articles Posted in Collaborative Law

Wedding Ring Blog Post.jpgLast fall, Governor Christie signed the New Jersey Collaborative Family Law Act after it passed unanimously through both the Senate and General Assembly. This legislation is modeled on a proposal from the New Jersey Law Revision Commission and the national Uniform Law Commission. The New Jersey Collaborative Family Law Act allows couples to have a marriage dissolved without court intervention through a process similar to mediation, in which both sides would be required to provide “timely, full, and candid disclosure” of relevant information without either side having to resort to discovery.

This demonstration of partisanship and constructive reform would allow couples who litigate their divorces in New Jersey to settle their cases through a newly enacted method called collaborative law. But according to recent statistics given by presiding judges in Morris; Sussex; Somerset; and Essex counties, approximately 97 percent of couples are still going through traditional divorces that end in settlements. So why aren’t couples turning to collaboration to settle their divorces?

Even though New Jersey has one of the lowest divorce rates in the nation (6.9 per 1,000 women; 6.6 per 1,000 men), New Jersey is the ninth state to legitimize this process to reduce costs, improve the selection of options for divorcing spouses, reduce the impact of the divorce on children, and create new jobs in the legal, financial, and psychological health sectors.

Divorce is tough. For most people, it brings up ideas of adversarial court battles, custody disputes and angry spouses. But divorce does not always have to mean war. Created in the 1980s, the collaborative divorce concept has slowly but surely gained popularity for couples who want to maintain peace in their family, even during a divorce. While the concept is still taking off in Indiana, collaborative law can be a great alternative to the “typical” divorce litigation process.

1267479_broken_heart_pic.jpgCollaborative Law is an alternative dispute resolution process in which the parties retain separate attorneys whose primary function is to help them reach an agreed settlement. The parties and their attorneys collaborate in good faith, and commit to communicate respectfully and honestly to represent the legitimate needs of both parties. The parties agree not to litigate, nor threaten to do so, and if that should occur, the Collaborative Law process terminates and both attorneys are disqualified from any further involvement in the case. Attorneys hired for a Collaborative Law matter cannot continue to represent their respective clients in a litigated case.

Collaborative Law is not the best option for everyone. The best candidates for the collaborative process are parties who:

How many times have you heard a divorced (or soon to be divorced) parent state “We stayed together for the kids”?  We hear it all the time.  Even when recounting horrible acts of deceit, abuse or cheating, these people seem to think that they were doing what was better for their children: Stay married.

For years researchers have been trying to find direct evidence as to whether it is better for parents to “suck it up” and stay together or divorce and move on.  The evidence is divided.  Many studies suggest that children of divorced parents are more likely to grow up poor, have behavioral problems or experience health problems.

However, new studies are starting to address the quality of the family relationships.  It has been found that the quality of the relationship between parents definitely matters. According to a study from the Center for Law and Social Policy, children who grow up in married families with high conflict experience lower emotional well-being than children who live in low-conflict families, and they may experience as many problems as children of divorced or never-married parents.  Research indicates that marital conflict interferes with the quality of parenting.  Furthermore, experiencing chronic conflict between married parents is inherently stressful for children, and children learn poor relationship skills from parents who aren’t able to solve problems amicably. When parents have a highly discordant relationship, children are often better off in the long run if their parents divorce. Between 30 and 40 percent of divorces of couples with children are preceded by a period of chronic discord between the parents.  In these situations, children do better when their parents divorce than if they stay married.

The specific language of your divorce settlement agreement does matter – make sure you understand the terms before you execute it, or you might regret it. The Indiana Court of Appeals affirmed a trial court’s finding in a dispute where Husband and Wife had separate interpretations of language dividing Husband’s deferred compensation plan.

Husband, Kyle J. Bonebright, appealed an order from the Warren Circuit Court relating to the parties’ marital settlement agreement approved on November 4, 2010. As usual procedure after a dissolution, a qualified domestic relations order (QDRO) was filed to transfer a portion of Husband’s deferred compensation plan to Wife as part of the terms of their settlement agreement. However, a dispute arose over the parties’ interpretation of the specific sentence in their settlement agreement which stated: “Husband has a Deferred Compensation Account in the amount of $21,000 which will become the sole and separate property of wife.” Mr. Bonebright believed the language specified that his ex-wife was to receive the flat sum of $21,000. However, the trial court ordered that Mrs. Bonebright “is entitled to the amount in the [Account] as of November 4, 2010, together with any gains or losses to such amount on deposit on November 4, 2010, due to interest or dividend accruals, and market fluctuations.” The trial court specified that the account would be Husband’s separate property as of November 5, 2010.

Husband appealed the trial court’s order, but The Court of Appeals affirmed and gave Mr. Bonebright a grammar lesson: “The Account is the subject of the sentence and ‘in the amount of $21,000’ both follows and modifies the subject. Thus, ‘in the amount of $21,000’ does no more than describe the account at the time it was included in the Agreement. Therefore, we find that the plain language of the Agreement transfers the entire Account to [Wife].”

We’ve all heard divorce horror stories from friends, coworkers or family members. Divorce is one of the most stressful experiences to endure. It is a loss which carries the weight of grief with all the ensuing emotions, including anger and denial. If you’re dealing with your own crumbling marriage, you’re likely feeling overwhelmed and scared about the impact divorce will have on your family and you. How can you survive the transition and adjust to a new life? The following suggestions may help you through the process.

1. Don’t try to handle your divorce on your own. In the interest of saving time and money, people are willing to compromise and are turning to the internet and online websites offering divorce packages and forms to “do it yourself.” Without more understanding of the law, they often don’t realize they could be compromising their legal rights. Preparing legal documents without the benefit of a legal opinion may result in unintended consequences that could be even more costly or impossible to correct in the future. Do talk with a law firm that can offer options, including alternatives to litigation, to help you save on attorneys’ fees.

2. Don’t assume traditional litigation is the best option. A common misunderstanding is that it is better for a judge to make decisions if spouses cannot agree. The reality is that litigation limits the decision-making of both parties and increases attorneys’ fees. You and your spouse are in the best position to determine what happens to your children and your property. There are cases where negotiation or mediation are not appropriate because of abuse or mental health issues, or these options prove ineffective. To determine a good strategy, find an attorney who will focus on what is best for you, your family and your financial situation.

Dr. Joseph Nowinski, a clinical psychologist and frequent author on divorce and parenting has suggested that true co-parenting isn’t always the best scenario. While he discusses that the philosophy is an improvement over the outdated “tender years doctrine” favoring mothers, he asserts that parenting time should be based on experience. Critics of this theory point out this is often a “Catch-22” situation for the parent who lacks experience because he or she hasn’t been the primary caregiver or custodian. How does one gain experience in parenting if insufficient parenting time is granted. Also, as households transition, each parent assumes more responsibilities in their respective new homes that were once mostly shared. In addition to the added responsibilities, both parents are likely experiencing financial hardship, which adds to the stress. More stress and distractions leave less time for attentive parenting. Divorce is disruptive for all members of the family. To minimize the trauma for the children, parents need to become more child-focused during the transition, which can be extremely difficult while handling their own emotional turmoil. An honest self-assessment is suggested to help parents evaluate if they are ready for shared parenting.

Dr. Nowinski has created the following list of questions. It is important to answer each of the following questions as it applies to you now, not what you plan for the future.

• Do you know the name of your child’s pediatrician?

In the current economy, many couples are searching for cheap, fast ways to process their divorces. With access to the internet, spouses have found online websites offering divorce packages and forms to “do it yourself”. LegalZoom is one such service. In the interest of saving time and money, people are sometimes willing to compromise, and without more understanding of the law, they often don’t realize they could be compromising their legal rights.

Most people have a tendency to underestimate the work that goes into preparation for divorce proceedings. Achieving a fair and equitable divorce requires a great deal more than simply printing off forms. Low-cost divorce websites and other such services reinforce the public opinion that legal processes such as divorce or estate planning may easily be accomplished by generating simple forms. But, if a consumer is considering the use of such services, one should carefully read the service provider’s disclaimer – the “fine print”. In the case of LegalZoom, the service provider is not acting as an attorney, does not review the documents the buyer prepares for compliance or legal sufficiency and does not guarantee that the documents are accurate or correct. Also, considering that divorce laws and procedures vary by state and are frequently revised, it is possible that forms on online websites are not up to date on each state’s current requirements.

Preparing legal documents without the benefit of a legal opinion may result in unintended consequences that could be even more costly to correct in the future. At JHDJ Law, we receive a number of calls from prospective clients who for various reasons chose not to have representation in the interest of saving money and then received unfavorable court orders. Unfortunately, the cost to appeal or attempt to modify an unfavorable order is usually 2-3 times the average cost to retain a divorce attorney at the beginning of the proceedings.

Therapists can assist the collaborative process in several ways. First, the parties can agree to have a mental health professional available during the process to assist with the emotional aspects of negotiations. Sometimes a therapist would sit in on meetings and sometimes would just meet with parties one on one or together outside the legal meetings. The role of the mental health professional in this situation is to give guidance to the parties as they face the emotional challenges of the settlement discussions. The second way a mental health professional can assist in the collaborative process is as a child expert. In this circumstance the parties are faced with a difficult child related issue and agree that they need the guidance of a therapist before making important decisions about their child. The therapist would, in this case, likely meet the child in the therapist’s office and would meet with both parents in the therapist’s office. Then the therapist would attend one or more meetings of the collaborative law team to inform the group on the difficult child-related issue and assist as needed when the parents are negotiating child issues. A formal written report is not typical, but is not forbidden. The third way that a therapist can assist the collaborative process is to become the therapist for one of the parties outside the collaborative law process. It is important to have therapists who understand the collaborative method of divorce so that they can encourage and assist parties with the unique demands of sitting face to face with a soon to be ex spouse.

Mental health professionals who participate in the collaborative process do not have to testify in court. Collaborative cases do not go to court! In the rare circumstance that the collaborative process is unsuccessful and the parties choose to pursue litigation, a mental health professional who has participated in the process under scenarios one and two listed above are off limits in the litigation process. In situation three above, they are only as available as any other treating mental health professional would be.

The cost that a mental health professional charges for his or her services is up to that professional. It is assumed that a mental health professional will charge for time spent in his or her office meeting with parties or children AND for time spent in collaborative law meetings. The parties discuss payment for these services in the collaborative meeting and agree on how the fees should be paid.