by Maria P. Imbalzano
Although some family law attorneys and parties to a divorce have participated in the collaborative process over the past ten years, it was not until September 10, 2014, that the New Jersey Legislature passed the Family Collaborative Law Act. This Act takes effect ninety days after enactment (December 9, 2014).
A collaborative divorce occurs when the two parties, who intend to divorce, decide to resolve their disputes without litigation. Each party would hire a collaboratively trained attorney to represent them, and the four of them would meet in a series of conferences to discuss the issues involved in the case and come up with ways to resolve each issue. This is done with other collaborative professionals, such as accountants, psychologists or licensed clinical social workers, financial planners, appraisers, or whoever else may be necessary to assist in the case.
Although some of us have been participating in collaborative divorces prior to the new law being enacted, the purpose of the law is to extend an evidentiary privilege to protect the parties from future disclosure of any collaborative communications.
While attorneys and their clients always have privileged communications under our Rules of Court adopted by the Supreme Court of New Jersey and under our Rules of Professional Conduct promulgated by the Supreme Court of New Jersey, those privileges did not extend to the neutral experts involved in the case. Now, under this new law, communications between and among neutral experts and the parties as well as the attorneys are privileged. This means that, if the collaborative process fails and either party chooses to litigate this matter, all communications made by a party, their lawyers, or other professionals in the collaborative case are privileged and will not be subject to discovery or admissible in evidence in future litigation. If for example the parties hired an accountant to determine the cash income brought in by a business owned by one of the parties, that accountant’s findings would be privileged and not subject to discovery or admissible as evidence if the parties ended up litigating their case.
This privilege is not meant to affect evidence or information that is otherwise admissible and readily available from other sources. For example, financial information contained in bank or investment account statements would be admissible in Court, even though provided in the collaborative law process.
The purpose of the privilege enables non-party participants (experts or professionals) to participate candidly in the process with the goal of facilitating a resolution of the case.
In addition to extending this privilege to all communications made by the parties, or the professionals in the case (with certain exceptions), the Act sets forth how the process begins, and how or why it ends. The Act also states that a party must act in good faith and provide full and candid disclosure of all information related to the dispute with or without formal discovery. It further provides that in the event either party wishes to terminate the collaborative process, then the collaborative lawyers cannot continue to represent the parties in Court.
For more information about the Family Collaborative Law Act, it would be best to speak to a collaboratively trained family law attorney.
Maria P. Imbalzano is a shareholder and member of Stark & Stark’s Divorce Group. www.stark-stark.com.