ASSEMBLY, No. 3375

STATE OF NEW JERSEY

211th LEGISLATURE

INTRODUCED OCTOBER 18, 2004

Sponsored by:

Assemblyman FRANCIS L. BODINE

District 8 (Burlington)

Assemblyman LARRY CHATZIDAKIS

District 8 (Burlington)

SYNOPSIS

    Establishes collaborative divorce.

CURRENT VERSION OF TEXT

    As introduced.

An Act establishing collaborative divorce and supplementing Title 2A of the New Jersey Statutes.

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. Definitions.

    As used in this act:

    "Collaborative law" means a procedure in which the parties seeking divorce, nullity or separate maintenance, and the parties' attorneys, agree to use their best efforts and make a good faith attempt to resolve the disputes arising from the marital relationship on a cooperative basis. The procedure shall include an agreement by the parties to attempt to resolve their disputes without having to resort to judicial intervention, except to have the court approve the settlement agreement and sign the orders required by law to effectuate the agreement of the parties as the court deems appropriate. The procedure shall also include an agreement wherein the parties' attorneys agree to withdraw as counsel if the case proceeds to litigation.

    "Collaborative law agreement" means a written agreement, signed by the parties and their attorneys, that contains an acknowledgment by the parties to attempt to resolve the disputes arising from their marriage in accordance with collaborative law procedures.

    "Collaborative law procedures" means the process for attempting to resolve disputes arising from a marriage as set forth in this act.

    "Collaborative law settlement agreement" means an agreement entered into between the parties as a result of collaborative law procedures that resolves the disputes arising from the parties' marriage.

    "Third-party expert" means a person, other than the parties to a collaborative law agreement, hired pursuant to a collaborative law agreement to assist the parties in the resolution of their disputes.

    2. Agreement by Parties and Attorneys.

    Upon agreement of the parties and their attorneys, an action for divorce, nullity or separate maintenance may be conducted under collaborative law procedures. A collaborative law agreement shall be in writing, signed by all the parties to the agreement and their attorneys, and shall include provisions for the withdrawal of all attorneys involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute.

    3. Requirements for Collaborative Law Agreement.

    A collaborative law agreement shall include provisions for:

    a. full and candid exchange of information between the parties and their attorneys as necessary to make a proper evaluation of the case;

    b. suspending court intervention in the dispute while the parties are using collaborative law procedures;

    c. hiring third-party experts, as jointly agreed, to be used in the procedure;

    d. withdrawal of all counsel involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute; and

    e. other provisions as agreed to by the parties consistent with a good faith effort to collaboratively settle the matter.

    4. Notice to court.

    a. The parties shall notify the court at least 30 days before any scheduled court proceeding that the parties are using collaborative law procedures to attempt to settle the case. Except as provided in subsection c. of this section, and unless a party notifies the court that the collaborative law procedures did not result in a settlement, the court shall not:

    (1) set a hearing or trial in the case;

    (2) impose discovery deadlines;

    (3) require compliance with scheduling orders; or

    (4) dismiss the case.

    b. The parties shall notify the court if the collaborative law procedures result in a settlement. If a settlement is not reached, the parties shall file periodic status reports with the court as follows:

    (1) not later than the 180th day after the date of the written agreement to use the procedures; and

    (2) not later than one year after the date of the written agreement to use the procedures, accompanied by a motion for continuance. The court shall grant the motion for continuance if the status report indicates the desire of the parties to continue to use collaborative law procedures.

    c. If the collaborative law procedures do not result in a settlement of the case within two years of filing of the complaint, the court may:

    (1) set the suit for trial on the regular docket; or

    (2) dismiss the case without prejudice.

    5. Tolling of Time Periods.

    A validly executed collaborative law agreement shall toll all legal time periods applicable to legal rights and issues under law between the parties for the amount of time the collaborative law agreement remains in effect. This section applies to any applicable statutes of limitations, filing deadlines, or other time limitations imposed by law or court rule, including setting a hearing or trial in the case, imposing discovery deadlines, and requiring compliance with scheduling orders.

    6. Alternative Dispute Resolution permitted.

    Nothing in this act shall be construed to prohibit the parties from using, by mutual agreement, other forms of alternative dispute resolution, including mediation or binding arbitration, to reach a settlement on any of the issues included in the collaborative law agreement. The parties' attorneys for the collaborative law proceeding may also serve as counsel for any form of alternative dispute resolution pursued as part of the collaborative law agreement.

    7. Rules of Court.

    The Supreme Court of New Jersey may adopt Rules of Court appropriate or necessary to effectuate the purpose of this act, including provisions for the appropriate training of attorneys and judges.

    8. Effective Date.

    This act shall take effect on the 90th day following enactment.

STATEMENT

    This bill would establish collaborative divorce as an alternative to the litigation of divorce cases. In collaborative divorce, the attorneys for both parties agree to resolve all issues in the divorce by using cooperative strategies and negotiation, instead of adversarial techniques. As a method of alternative dispute resolution, collaborative divorce has some similarities to divorce mediation. However, unlike mediation, which relies on the services of a neutral mediator, collaborative divorce requires that both parties bring attorneys to "four-way" conferences and requires a serious commitment to avoiding litigation. A key component to collaborative divorce is that both attorneys sign an agreement that they will withdraw from the case if it is not settled before trial, thus giving the attorneys a strong incentive to settle.

    The bill defines "collaborative law" as a procedure in which the parties seeking divorce, nullity or separate maintenance, and the parties' attorneys, agree to use their best efforts and make a good faith attempt to resolve the disputes arising from the marital relationship on a cooperative basis. The procedure includes an agreement by the parties to attempt to resolve their disputes without having to resort to judicial intervention, except to have the court approve the settlement agreement as the court deems appropriate. The procedure also includes an agreement wherein the parties' attorneys agree to withdraw as counsel if the case proceeds to litigation.

    Under the bill, a "collaborative law agreement" is defined as a written agreement, signed by the parties and their attorneys, that contains an acknowledgment by the parties to attempt to resolve the disputes arising from their marriage in accordance with collaborative law procedures.

    Under the bill, upon agreement of the parties and their attorneys, an action for divorce, nullity or separate maintenance may be conducted under collaborative law procedures. A collaborative law agreement must be in writing, signed by all the parties to the agreement and their attorneys, and must include provisions for the withdrawal of all attorneys involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute.

    The bill provides that a collaborative law agreement must include provisions for:

    (a) full and candid exchange of information between the parties and their attorneys as necessary to make a proper evaluation of the case;

    (b) suspending court intervention in the dispute while the parties are using collaborative law procedures;

    (c) hiring third-party experts, as jointly agreed, to be used in the procedure;

    (d) withdrawal of all counsel involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute; and

    (e) other provisions as agreed to by the parties consistent with a good faith effort to collaboratively settle the matter.

    While the collaborative law procedures are pending, the court would not set a hearing or trial in the case, impose discovery deadlines, require compliance with scheduling orders, or dismiss the case.

    Under the bill, the parties would notify the court if the collaborative law procedures result in a settlement. If a settlement is not reached, the parties would file periodic status reports with the court. If the collaborative law procedures do not result in a settlement of the case within two years of filing of the complaint, the court could then set the suit for trial on the regular docket or dismiss the case without prejudice.

    This bill is modeled on statutes in effect in Texas and North Carolina.