Divorce can be an emotionally scarring and expensive experience for all of the parties involved. In an effort to find a way to end a marriage but preserve family ties, some attorneys have turned to collaborative law. In a collaborative divorce, everyone agrees at the outset that their goal is to settle the matter and that if they can’t, the lawyers involved cannot be a part of any future litigation.
The process is practiced in 39 states and the District of Columbia. Now, the New Jersey Family Collaborative Law Act has been introduced in the New Jersey Legislature, with the aim of providing a uniform framework for the use of collaborative law. The New Jersey State Bar Association’s Board of Trustees recently granted high-priority support for the measure. Similar laws have been adopted or introduced in a number of other states, including Hawaii, Ohio, Nevada, Texas, Utah, Illinois, Massachusetts, Oklahoma, New Mexico and Washington.
Jeralyn Lawrence, of Norris, McLaughlin and Marcus, who is chair-elect of the association’s Family Law Section, discussed the practice.
Bar Report: What is collaborative divorce?
Jeralyn Lawrence: A collaborative divorce, in a nutshell, is a child-focused divorce. One of the clichés is that we put the child in the center, but not in the middle. The main difference is that a collaborative divorce is based on a contract, a participation agreement. The two lawyers sign it and the two clients sign it. The essence of that agreement is that we are committing ourselves to settling the case and that if we can’t, the lawyers will get out. The difference is you cannot litigate. You can never take your toys and go home. It is a paradigm shift. You even speak differently. For instance, we don’t call the other lawyer an adversary, we are colleagues. We don’t make demands, we make requests or suggest ideas. Everybody is sitting around the table trying to problem-solve and trying to not hurt families and not hurt children.
BR: How does this work?
JL: Often times a collaborative divorce becomes a team approach. There are no letter-writing campaigns or motions. Everything is done through a series of four- or five-way meetings. There are plenty of times when everybody is angry, and when that happens we take a break and try to figure out why they are angry and if there are tools available to us that can make things easier. In those situations, the meetings don’t just involve the lawyers and the clients, but also include experts. For instance, you may bring in a parenting specialist as a neutral to help them work on custody and parenting-time issues. And if alimony is an issue, we can bring in a neutral financial coach to run a cash flow analysis and examine tax consequences. These experts become part of the team, and part of the process to help.
BR: That sounds expensive.
JL: All of what I just outlined generally costs less than one motion. It’s an efficient process. A collaborative divorce is generally a third of the cost of a litigated divorce. It is such a great process. It is entirely focused on an amicable and peaceful divorce. Once you buy into this process and make that paradigm shift, it is a great alternative to the divorce process. It is wonderful to watch people go through it.
BR: If this law is adopted, will we see an end to litigated divorces?
JL: Absolutely not. It’s not going to replace litigation. There are always going to be some cases that need to be litigated. A collaborative process is just another option.