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Bedminster • Freehold • Hackensack Mount Laurel Parsippany Collaborative Law 101: An Introduction to New Jersey Collaborative Divorce HOW CAN WE USE COLLABORATIVE LAW TO KEEP OUR DIVORCE OUT OF COURT ?

Collaborative Divorce in New Jersey: Collaborative Law 101

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Page 1: Collaborative Divorce in New Jersey: Collaborative Law 101

Bedminster • Freehold • Hackensack • Mount Laurel • Parsippany

Collaborative Law 101: An Introduction to New Jersey Collaborative Divorce

H O W C A N W E U S E C O L L A B O R AT I V E L A W T O K E E P O U R D I V O R C E O U T O F C O U R T ?

Page 2: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: NEW JERSEY DIVORCE

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DISCLAIMER

This presentation contains general information and does not constitute legal advice.

Be sure to direct specific questions about your own situation to an attorney.

Page 3: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: NEW JERSEY DIVORCE

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• What is Collaborative Law?

• Why Use Collaborative Law for Divorce?

• How Do We Choose Attorneys?

• Who Are the Members of the Collaborative Team?

• How Does the Collaborative Divorce Process Work?

• What if Problems Come Up After Our Divorce?

Sections

Page 4: Collaborative Divorce in New Jersey: Collaborative Law 101

WHAT IS COLLABORATIVE LAW?

COLLABORATIVE LAW 101: NEW JERSEY DIVORCE

Page 5: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: What is Collaborative Law?

Col laborative Law:

• Collaborative law is an alternative dispute resolution (ADR) process which is less conflict-oriented and less stressful than litigation.

• The goal of collaborative law is to find solutions that provide maximum benefit to each divorcing spouse, rather than to have one spouse “win” and the other “lose.”

• Collaborative attorneys work to help parties reach their own solutions without turning to a judge to decide matters for them.

An Alternative to Litigation

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Page 6: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: What is Collaborative Law?

Is Col laborative Law Different From Mediat ion?

• The most popular form of ADR for divorce is mediation.

• Collaborative law is a newer and different type of ADR process.

• Both mediation and collaborative law approach conflict from a healing perspective rather than from an adversarial perspective.

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Page 7: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: What is Collaborative Law?

Divorce Mediat ion: A Popular ADR Process

• Parties work directly with a neutral third-party mediator who helps them negotiate their own solutions.

• Parties generally hire attorneys only as consultants, and attorneys rarely attend mediation sessions.

• If parties fail to reach agreements during mediation, they can proceed to litigation with the same attorneys.

In mediation:

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Page 8: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: What is Collaborative Law?

Col laborative Law:

A New ADR Option

• Couples who wish to avoid litigation but feel a need for more legal support can choose collaborative law.

• The process is suitable for resolution of all issues relating to divorce, including:

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• equitable distribution of property,

• alimony,

• child custody or parenting time, and

• calculation of appropriate child support.

Page 9: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: What is Collaborative Law?

How Col laborative Law Differs From Mediat ion

• Unlike mediation, there is no neutral party overseeing the collaborative law process.

• Attorneys and clients all meet together to negotiate solutions.

• Additional experts are retained jointly as members of the collaborative team.

• If parties fail to reach agreement through the collaborative process, they must retain new attorneys before proceeding to court.

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Page 10: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: What is Collaborative Law?

The Col laborative Law Part ic ipation Agreement

• The parties sign a Collaborative Law Participation Agreement, promising in writing to pursue only an outof court settlement.

• The written agreement also includes promises to communicate honestly and completely and to negotiatein good faith toward a full resolution of all issues.

• The attorneys agree to withdraw from the case if either spouse decides to file any court papers otherthan those necessary to complete an uncontested divorce.

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Page 11: Collaborative Divorce in New Jersey: Collaborative Law 101

WHY USE COLLABORATIVE LAW FOR DIVORCE?

COLLABORATIVE LAW 101: NEW JERSEY DIVORCE

Page 12: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: Using Collaborative Law for Divorce

Benefits of Col laborative Law in Divorce

T he P r oces s Reduces C onf l i c t

• Litigation tends to increase the stress of divorce, by eroding openness and trust and encouraging spousesto fight for their own interests and against the interests of the other spouse.

• Collaborative law encourages parties to work toward building mutually beneficial solutions.

• The format provides a safe and confidential setting, allowing both spouses the opportunity to fullyexpress wants and needs, reducing frustration and fostering a more peaceful and constructiveenvironment.

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Page 13: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: Using Collaborative Law for Divorce

Benefits of Col laborative Law in Divorce

T he P r oces s Reduces C onf l i c t

• Maintaining privacy can be especially important in family law disputes, where the details of a case tend to be highly personal in nature.

• Couples who choose to have a judge decide their divorce issues must litigate in open court, where the proceedings become part of the public record.

• In a collaborative divorce, negotiations remain confidential, and family privacy is protected.

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Page 14: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: Using Collaborative Law for Divorce

Benefits of Col laborative Law in Divorce

T he P r oces s Reduces C onf l i c t

• Attorneys and experts do not make decisions for divorcing spouses the way a judge does.

• Negotiations help the spouses clarify issues, identify the most critical points, and achieve mutually acceptable results.

• Decisions made in negotiations are not binding until each spouse signs a final agreement.

• Because couples who negotiate their own agreements tend to be more satisfied with their results, they are often more likely to abide by terms.

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Page 15: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: Using Collaborative Law for Divorce

Benefits of Col laborative Law in Divorce

T he P r oces s Tends to S ave T ime

• Litigation typically takes at least a year and often up to two years. Some complicated cases drag on for longer than two years.

• In collaborative law, parties can set their own pace, rather than being at the mercy of court calendars and deadlines.

• The time it takes to reach a settlement in a collaborative process varies depending on factors such as the preferred pace of the parties and the number and complexity of issues, but it is often a more rapid process than litigation.

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Page 16: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: Using Collaborative Law for Divorce

Benefits of Col laborative Law in Divorce

T he P r oces s May S ave Money

• The openness of the process removes the need for time-consuming formal procedures.

• Although there are two attorneys involved in the negotiations, the attorneys will not have to spend time preparing for or appearing in court.

• Using joint experts is considerably less expensive than using competing experts in court.

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Page 17: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: Using Collaborative Law for Divorce

Improves Co-Parenting

Keeping parenting disputes out of court helps parents preserve or improve upon the cooperative relationship that is essential to co-parenting.

Reduces Future Conflicts

If serious parenting disagreements continue to arise in the future, parents can return to attorney-supported negotiations to resolve issues out of court.

Is Collaborative Divorce Right for Your Case?

Protects Children Emotionally

Reducing conflict between parents protects children from feeling pressured to choose sides, which can lead to emotional turmoil.

Builds Communication Skills

Parents who collaborate on parenting matters learn skills that can help them work through future disagreements on their own.

The Process Protects Children

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Page 18: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: Using Collaborative Law for Divorce

FINANCIALLY COMPLEX CASES

Joint financial experts can work as part of your collaborative team in an open and effective manner.

POST-DIVORCE ISSUES

After your divorce is final, returning to negotiations can help you resolve post-divorce issues such as changes in financial support or parenting arrangements.

Is Collaborative Divorce Right for Your Case?

SMALLER CASES

Collaboration can facilitate a fair division of household contents without expensive court involvement.

PARENTING DISPUTES

Collaborative law can help you preserve your co-parenting relationship and explore amicable resolutions that address children’s best interests.

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The collaborative process is suited for a wide variety of situations.

Page 19: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: Using Collaborative Law for Divorce

Are you good candidates for a collaborative divorce?

The only requirement is a willingness to work toward mutually beneficial solutions.

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The process is easiest for spouses who are already amicable.

Spouses who might have trouble with mediation due to difficulty communicating will benefit from the extra attorney support the collaborative process provides.

Spouses who still need additional emotional support can hire separate divorce coaches.

Page 20: Collaborative Divorce in New Jersey: Collaborative Law 101

CHOOSING COLLABORATIVE DIVORCE ATTORNEYS

COLLABORATIVE LAW 101: NEW JERSEY DIVORCE

Page 21: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: Choosing Collaborative Divorce Attorneys

Choosing Col laborat ive Divorce Attorneys

What Qual i f i cat ions S hould We L ook For ?

At a minimum, find an attorney who has completed introductory training in collaborative law.

Collaborative training provides practitioners with:

• Basic skills in creating effective and long-lasting solutions to common divorce issues through collaborative methods, and

• Interdisciplinary team training, in which practitioners interact with mental health and financial professionals to learn how to provide the most appropriate support services for the parties and their children.

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Page 22: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: Choosing Collaborative Divorce Attorneys

Choosing Col laborat ive Divorce Attorneys

What Quest ions S hould We As k?

Ask your prospective attorney questions about:

• Background, training, and specific experience with collaborative divorce and other ADR processes, such as mediation.

• The Collaborative Law Participation Agreement.

• What kinds of experts you will need on your collaborative team.

• Fees and what the fees include.

• Preparation and filing of the divorce papers.

• The estimated number and length of sessions for your type of situation.

• Preparation of a Marital Settlement Agreement (MSA).

• Finalizing the divorce.

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Page 23: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: Choosing Collaborative Divorce Attorneys

Can We Both Use the Same Attorney?

Many people choosing collaborative law think that since they are so amicable it makes sense for them to try to save money by using the same attorney, but this is not possible:

• Regardless of how agreeable you are, you still have different and sometimes opposing legal rights and interests.

• It is a conflict of interest for an attorney to represent two people with opposing interests.

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Page 24: Collaborative Divorce in New Jersey: Collaborative Law 101

WHO ARE THE MEMBERS OF THE COLLABORATIVE TEAM?

COLLABORATIVE LAW 101: NEW JERSEY DIVORCE

Page 25: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: The Collaborative Team

• The collaborative team always includes the parties and their attorneys.

• The team may also include divorce coaches and any additional professionals necessary to properlyevaluate the case.

• In most cases, the parties agree to hire joint experts and share the costs.

• Joint experts generally agree not to serve as witnesses if the case proceeds to litigation, and any expertreports will not be admissible in court without the agreement of both parties.

• The following types of professionals commonly participate on collaborative divorce teams:

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THE COLLABORATIVE TEAM

What K inds o f Ex per ts Wi l l We N eed?

Page 26: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: The Collaborative Team

• A divorce coach is a mental health professional who helps each divorcing spouse manage emotionalissues as they arise during the collaborative process.

• The coach does not act as a therapist, but does provide emotional support, while also guiding parties inprioritizing issues and maintaining good communication.

• Depending on how much individual support each spouse needs, divorcing couples can choose either ajoint coach or individual coaches.

• A coach with adequate training in child development sometimes doubles as a child specialist; in othercases, a separate professional fills this role.

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DIVORCE COACHES

What i s the Ro le o f a D ivor ce C oac h?

Page 27: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: The Collaborative Team

The Chi ld Special ist

• If there are custody issues to be decided, the team will probably include a licensed mental health professional with training in child development and family systems.

• The child specialist provides information about children’s needs and helps parents evaluate custody options.

• Choose someone with experience working with parenting issues common to family reorganization.

What is the Role of a Child Specialist?

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Page 28: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: The Collaborative Team

PENSION APPRAISOR/ACTUARY

Uses statistical analysis to project the future value of a pension.

VOCATIONAL EXPERT

Provides information about available jobs that fit education and experience.

Potential Financial Experts

FINANCIAL SPECIALIST

Ensures appropriate data collection and addresses potential tax consequences.

BUSINESS VALUATOR OR APPRAISOR

Specializes in analyzing business values and income streams.

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PROPERTY APPRAISOR

Gives opinions on value of property like real estate, artwork, or jewelry.

Page 29: Collaborative Divorce in New Jersey: Collaborative Law 101

HOW DOES THE COLLABORATIVE DIVORCE PROCESS WORK?COLLABORATIVE LAW 101: NEW JERSEY DIVORCE

Page 30: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: How Does the Process Work?

The Init ia l Attorney Meeting

The parties and their attorneys meet for an initialconference to discuss important matters such as:

• rights and obligations,

• scope of confidentiality,

• use of joint experts or consultants, and

• how the divorce will be finalized.

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The parties then sign a collaborative lawparticipation agreement.

Page 31: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: How Does the Process Work?

Addressing Urgent Matters

• As soon as the participation agreement is in place, the parties and their attorneys discuss any urgent matters that need to be addressed immediately.

• Urgent matters may include temporary financial support agreements or child custody arrangements.

• The parties and their attorneys then decide what other types of professionals to include on the collaborative team.

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Page 32: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: How Does the Process Work?

A Series of Four Way Meetings

• The parties and their attorneys meet as many additional times as necessary to resolve all issues.

• Other members of the collaborative team participate as required.

• The parties exchange all information openly and efficiently, avoiding the need for any formal, court-regulated discovery procedures.

• Once all issues are resolved, the attorneys put together a comprehensive MSA to be filed in court.

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Page 33: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: How Does the Process Work?

• The MSA is a formal legal document that you both sign and then file with the court.

• Your MSA will include all of the agreements you and your spouse have made and serves to resolve allissues in your divorce.

• MSA’s are also sometimes called Property Settlement Agreements, but for couples with children, the MSAincludes terms regarding child custody and support as well as property distribution and other financialmatters.

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The Marital Sett lement Agreement

P utt ing Your Agr eements into Wr i t ing

Page 34: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: How Does the Process Work?

• This depends on what county you are in.

• You will need to complete paperwork for a no-fault New Jersey divorce.

• If neither of you has filed a complaint for divorce prior to pursuing a collaborative process, your attorneyscan file the complaint simultaneously with the MSA.

• In some counties, you will still need to attend a brief court hearing to finalize the divorce.

• In other counties, you can complete the paperwork to finalize the divorce without a hearing.

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Do We Need a Court Hearing to F inal ize Our Divorce?

Page 35: Collaborative Divorce in New Jersey: Collaborative Law 101

COLLABORATIVE LAW 101: How Does the Process Work?

What i f we can’t agree on everything?

• If you are unable to resolve all of your issues, you can still go to court.

• Under your collaborative agreement, each of you will need to retain new attorneys to appear in court.

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Page 36: Collaborative Divorce in New Jersey: Collaborative Law 101

WHAT IF PROBLEMS COME UP AFTER OUR DIVORCE IS FINAL?

COLLABORATIVE LAW 101: NEW JERSEY DIVORCE

Page 37: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: Post Divorce Modifications

Post Divorce Modif icat ions

What i f th ings c hange af ter y our d ivor ce i s f ina l?

• Child custody and child support orders can be modified until children are emancipated (deemed to be independent).

• Alimony is modifiable under certain conditions, unless your MSA clearly states that it is not.

• All modifications require a substantial change in circumstances.

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Page 38: Collaborative Divorce in New Jersey: Collaborative Law 101

(888) 888-919 Court Plaza South-West Wing. 21 Main Street, Suite 354 I Hackensack, NJ 07601.Phone: (201) 642-2000

COLLABORATIVE LAW 101: Post Divorce Modifications

Post Divorce Modif icat ions

Amending or Enfor c ing Your MSA:

• The majority of post-divorce issues occur when one party fails to carry out the terms of the MSA.

• Your MSA can include an agreement that before either of you files a motion in court, you will attempt to resolve issues amicably through mediation or another collaborative process.

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Page 39: Collaborative Divorce in New Jersey: Collaborative Law 101

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