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The New Jersey Divorce Process: Litigation, Mediation or Collaboration?

Kathryn A. Gilbert, Esq.

Fifty percent of all marriages fail, and that statistic rises to a staggering sixty-five percent for second marriages. The good news is that while your marriage may have failed, you can "succeed" at your divorce. This means that you can keep your costs down and reduce emotional trauma by properly selecting your divorce process. Families, and especially children, suffer more from the divorce process than the divorce itself.

In New Jersey, a spouse merely needs to allege that for a period of six months or more, irreconcilable differences arose that led to a breakdown in the marriage. When one party seeks a divorce on this ground, the other party has no say in the fact that the marriage is ending. However, each party does have a say in all of the issues pertaining to the children and distribution of assets. While it may be hard to focus, it is essential that you do not let your emotions cloud your judgment at this crucial time. You need to select the best process to resolve your issues.

A divorce is essentially the disentangling of a "business" partnership with a heavy dose of emotion that often complicates the picture. Many times one party may not want the divorce, or the circumstances that led to the divorce may have created an intensely bitter environment. Sometimes the fear of being alone or handling one's own finances can be overwhelming. Both parties must extricate themselves from the bitterness and focus on resolving the issues at hand. They must not look back at what they cannot change, but must look forward to addressing future goals and needs.

In New Jersey, couples have three very different options for resolving their differences: mediation, collaboration, or litigation. You must decide which one will most effectively get you where you need to be, since there is not a single option that is right for every divorcing couple.


Mediation is a voluntary process of self-determination, meaning that you and your spouse create your own settlement agreement with the aid of a mediator who acts as a facilitator of the negotiations. Your mediator will give you legal information, but not advice. A mediator will make sure all of the appropriate issues are addressed, but cannot declare the agreement fair to either party, as the mediator does not represent either party.

Generally (but not always) each party will also have his or her own lawyer to review the final document created through mediation, called the Memorandum of Understanding. This document will form the basis of a Property Settlement Agreement that is ultimately prepared by one of the parties' attorneys. The entire process is generally much less expensive and happens completely out of court. You will ultimately appear in court to finalize the matter at a quick hearing, but all of the issues will be resolved prior to the court appearance.

This process is a good option for couples who are amicable, knowledgeable about their joint assets, have a degree of trust in the other, and who prefer to keep their affairs private and save money. It prevents the Court from "dictating" terms that quite possibly neither you nor your spouse would be happy with. Both parties must consent to mediation.

Collaborative Divorce

New Jersey has just started to embrace a new and exciting process called collaborative divorce.

If you find yourself headed for divorce or separation and would prefer to proceed in a non-adversarial manner while retaining your dignity, sanity and your money, then collaborative divorce is for you.

In a collaborative divorce, the parties control the process, not the court. You can reach an agreement that is in accord with your family values, while preserving both parties' relationship with the children and even with each other. It gives you a long-lasting, mutually agreeable, and affordable resolution.

Unlike mediation, both spouses are represented and advised by attorneys who negotiate for each party. It is a less adversarial process than traditional litigation and is focused on compromising and addressing both parties' needs and concerns in an amicable, goal-oriented fashion.

All meetings are private and confidential. This differs from traditional litigation, where all documents are public records.

Collaborative law is generally less stressful and less expensive, and leads to a better, long-lasting relationship, which is especially desirable when children of the marriage guarantee future interactions with your spouse. Both parties must be on board with a level of trust and commitment to the process.


Sometimes when there is a lack of trust, imbalance of power, domestic violence, or an extremely high level of emotion, litigation might be the necessary option. Litigation is expensive and schedules are dictated by the court. With litigation, it usually takes longer to get divorced, and you are afforded no privacy in your proceedings. Unfortunately, it is the only option for some couples.

Litigation may be necessary where a reluctant spouse will not participate in negotiations without being compelled. If there are emergent issues that cannot otherwise be resolved, whether they regard children, support, or immediate and irreparable dissipation of assets, or if you believe that you are otherwise unable to work with your spouse toward the dissolution of your marriage, litigation might be your only option. When your spouse will not consent to participate in either mediation or collaboration, this is the only available alternative.

Each party will be represented by counsel who will seek to advance his own client's position, while the spouse's attorney will take a similar stance for his own client. This adversarial process, while often necessary, is the more expensive option. Furthermore, advancing a tough position for a client does not guarantee against an eventual level of compromise, or a less favorable decision from a judge than the party sought.

If an impasse arises in the course of negotiating, the parties have access to the court to resolve their disputes. Prior to trial, courts will only address emergent issues that cannot wait. Most issues, such as a final determination on custody and the division of assets and liabilities, must wait for a final decision by a trial judge. Only one percent of cases in New Jersey actually reach a final trial phase.

For the best result in any of these divorce processes, you must educate yourself on your family finances and be sure to also fully educate your attorney, since he or she can only be as effective as the tools they are provided.

Now that you know your three options, you should pick the process that best suits your style and goals.

Kathryn A. Gilbert with offices in Bergen County, New Jersey, is one of NJ's highest qualified divorce attorneys, mediators, and collaborative law professionals, with more than 2 decades of solid litigation and mediation experience and a dedication to her promise to explore and respect every aspect of your case with personalized attention and an aggressive representation plan. She will provide caring, effective divorce advice including preparing settlement agreements; creating a roadmap for prenuptial agreements, spousal support; child custody, and child support issues for clients across Bergen County, New Jersey.

She can be contacted by phone at (201)487-0900 or
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