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DivorceNo “No Fault” Divorce in New York – But is Collaborative Law Divorce Coming Instead?

February 27, 2007

It seems that “No-Fault” divorce law is not coming to New York any time soon. On the other hand, New York is embracing an alternative method of divorce, collaborative law.

As reported in the New York Times, “Chief Judge Judith S. Kaye, in her annual address on the judiciary, announced plans to create a new family law center in New York City that is intended to make divorce faster and cheaper for couples who want amicable settlements.”

Under the [collaborative law], lawyers still represent both sides, but they agree not to continue representing their clients if the negotiations fail and the matter ends up in court. That way, advocates of the process say, the lawyers are deprived of a financial incentive for failing to resolve the matter amicably. The participants also agree not to go to court for a certain period of time while the alternative process is under way.

“The basic premise behind it is that by providing folks with access to lawyers who are knowledgeable in matrimonial law, who are committed to negotiating on behalf of their clients an amicable settlement without being stuck in the adversarial environment, they are able to limit expenses and foster a more collaborative process,” said Daniel Weitz, a state coordinator for the Office of Court Administration.

Critics of the practice had limited appeal because many people in the midst of divorce want to maintain the threat of going to court while negotiating settlements.

Perhaps it is possible to have the best of both worlds; alternative dispute methods can be implemented as part of a contested divorce.   In New Jersey, for instance, parties to a contested divorce must go before an early settlement panel to attempt settlement. The panel consists of volunteer divorce lawyers, who give their view of a case after hearing the relevant facts and issues. The fresh perspective of neutral experts oft helps broker settlements.   If the case is not settled at the early settlement part, the court can order financial mediation.

Rather than create a competing forum for divorce, New York should follow the lead of other states, and embrace alternative dispute resolution as part of the contested divorces process.

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