Written By: Jane M. Schirch, Esq.
Many people choose to engage in the collaborative process for many reasons. One of the reasons I hear over and over again from clients that have chosen this process is that it allows them to maintain privacy and confidentiality of their intimate family conflicts. In the traditional divorce process, the case will begin when an individual files for divorce. All of the documents in the Court’s file (with the exception of the financial affidavit and any Guardian Ad Litem report regarding the minor children) are open and available to the public. After the initial filing, there will likely be subsequent hearings, which occur in an open courtroom available to anyone in the community to sit in and listen.
The Collaborative divorce process occurs outside of the court process. Nothing is filed with the Court until the entire agreement is finalized and the meetings between parties and their team usually occur in the privacy of a professional office space. New Hampshire has recently enacted the New Hampshire Collaborative Law Act, RSA 490-J (NHCLA). Under the NHCLA, any communications in the collaborative process are confidential (with some limited exceptions). RSA 490-J:14. The law also establishes that those communications are privileged and cannot be used in any subsequent litigation. RSA 490-J:15. This statutory determination of confidentiality and privilege allows the parties the opportunity to speak freely and not to worry that any proposals or discussions of potential outcomes will be used against them in Court. The law also makes clear that no team member will be forced to testify about the collaborative process if the process fails and the parties end up having to go to court.
The privacy and confidentiality of the collaborative process creates a safe space for the parties and their team members to discuss many issues that are private and that the parties wish to remain private; including issues of substance misuse, mental and physical limitations, infidelity and trust as well as the special needs of their children. The parties are able to discuss these difficult issues and to craft solutions that work for their family while preserving relationships and the safety and security of all family members.
JANE M. SCHIRCH, ESQ., founding Member and Partner Attorney Schirch received her B.A. from the University of Massachusetts at Amherst and graduated cum laude from Suffolk University Law School in 1992. She is a member of the New Hampshire Bar Association and is licensed to practice in the state of Massachusetts. Attorney Schirch began her legal career in the litigation department of a firm in Boston, Massachusetts where she focused her practice primarily on complex business litigation.