A divorce is one of the most stressful life situations a person will ever face. Collaborative Family Law offers an innovative, alternative approach to divorce litigation. This new option was made possible by House Bill 1363, passed by the Texas Legislature in 2001, and is now part of the Texas Family Code. For parties who can work together to resolve their issues, a Collaborative Divorce offers a less stressful, less adversarial, and less expensive approach to making this major life transition.

A traditional divorce process often pits family members against one another, assuming that each must try to “win” and make the other “lose.” It requires that the divorcing parties and their lawyers assume tactical positions, to the disadvantage of the other, rather than seeking win-win solutions. A contested divorce tends to destroy whatever positive relationship may be left, and may lead to embittered family relationships.

Wayne H. Prescott is a trained collaborative family law practitioner. He can suggest other counsel for spouses — divorce attorneys who are also trained in the Collaborative Law approach.

Legal Fees

The parties agree at the outset that all legal fees and other expenses of the divorce will be drawn from community funds. Fees for a collaborative divorce tend to be significantly lower than those for a contested divorce that may go to trial.

Please Note: If the parties fail to settle their issues through the Collaborative Law process, the collaborative lawyers must withdraw, and new trial counsel must be retained by each party. Therefore, we encourage parties to be fully committed to a collaborative approach before proceeding down this path.

The Collaborative Process:

If you and your spouse choose to pursue a Collaborative Law divorce, you will each have your own attorney. The parties and the attorneys will share a commitment to achieving an amicable settlement without an intervention of the Court.

The Collaborative Law process involves informal discussions and four-way conferences for the purpose of settling all issues. Each party and his/her attorney agrees to proceed with honesty and mutual respect. The parties negotiate the terms of their divorce in good faith, acknowledging the need to work together and compromise in order to settle the issues.

The attorneys commit to helping the parties resolve their differences justly and equitably, without resort (or threat of resort) to court proceedings. Collaborative Law utilizes informal discovery, such as the voluntary exchange of financial information, and relies on neutral experts such as tax advisors, financial planners, appraisers, and family counselors. The parties may be assigned tasks to assist in preparing inventories and appraisals of assets and liabilities.

Parenting plans, which allocate parental responsibilities and time with the child(ren), are jointly worked out by the parents, with the goal of serving the best interests of the children and the family.

The Collaborative Divorce process typically entails a series of two- or three-hour meetings (known as “four-way meetings”). These are scheduled to allow for the gathering of needed information, the defusing of tension, and the consideration of proposals between meetings.

Courts are peripheral to the Collaborative Family Law process. They are used to formalize the agreements reached by the parties, who submit the traditional court documents. However, they do not make decisions as to allocation of property or parental rights. Control remains in the hands of the parties themselves, rather than being deferred to a judge. Agreements worked out by the parties themselves tend to be more acceptable to them. A judge’s decision may satisfy neither party.

The Collaborative Process: Potential Advantages

• The Collaborative Law process preserves family privacy by not airing differences in a public forum (the courthouse). Some of the terms of the final agreement and most of the financial information will not be disclosed in public court records.
• Parties are more likely to comply with settlements they have both worked out, whereas a party who is not satisfied with a court-ordered mandate may resist complying and create additional problems and tensions between the parties.
• If the parties have minor children, the direct communication model of the Collaborative Law process helps them preserve a cooperative relationship which will benefit the children as the parties proceed with co-parenting after divorce.
• Clinical research has shown that the inevitable increase in hostility and conflict arising out of adversarial litigation may emotionally damage the litigants’ children. The Collaborative Law process is designed to minimize this level of conflict.
• The parties increase the chances that they, along with extended family and mutual friends, can continue to have a positive relationship after the dissolution of the marriage.
• The parties do not take the risks inherent in court proceedings. Even though the judge knows the law, listens to the audience, and wants to do the right thing, no one knows your family, assets and future plans as well as you do.
• Collaborative Law is more likely to “level the financial playing field” in that all legal fees and expenses for both parties are drawn from community funds.
• Collaborative Law encourages creative solutions to meet your special needs, which may differ from how a court would apply the law to your case.
• Everyone has economic incentive to work toward a fair settlement – the parties and their children because of the high cost of litigation; the lawyers because they would be forced to withdraw if settlement cannot be achieved.
• Collaborative Divorce removes the possibility that the litigant with the less meritorious case will prevail, simply because of superior advocacy or technicalities unrelated to fairness or justice.

The Collaborative Process: Potential Disadvantages

• A Collaborative Law approach will not succeed if trust between the divorcing parties is completely lacking. If you strongly suspect that your spouse will lie, and/or would not be open and honest in his dealings with you, a collaborative divorce may not be an option.
• The Collaborative Law process, like mediation, may not be appropriate if there is a history or pattern of family violence. The court has remedies, such as protective orders, which are not utilized in the Collaborative Law process.
• Individuals who feel threatened or intimidated or in an unequal bargaining position, in the presence of their spouse may find the Collaborative Law process unsuitable. If you feel coerced into submitting to the Collaborative Law process, you should not participate.
• If you require a public forum to vindicate and defend yourself from accusations of wrong-doing, the privacy of the Collaborative Law process may not satisfy you.
• While the parties are involved in the Collaborative Law process, neither one can obtain a court order to restrain the other party from incurring debt, disposing of property, making unilateral decisions about the children, or taking other objectionable actions.
• There may be a preliminary question of law or fact upon which all negotiations depend that should be determined by the court at the outset, thereby eliminating the Collaborative Law process as a choice.
• Court orders to compel production of information are not available during the Collaborative Law process.
• The Collaborative Law process is not appropriate when punitive action is sought, such as contempt proceedings to enforce prior orders.
• In the traditional litigation model, formal discovery may disclose facts that the other party is attempting to conceal. The Collaborative Law process prohibits taking tactical advantage of the other’s mistakes, oversights, and misinformation.

If the case does not settle using the Collaborative Model:

• If the parties are not able to settle their issues through the Collaborative Law process, the collaborative lawyers must withdraw, and new trial counsel must be retained by each party. This can result in a more expensive divorce process.
• Neutral experts used during the Collaborative Law process cannot be used again, if the case does not settle. Each party will need to retain additional experts to support their position in court.
• There will be some duplication of effort as the Litigation Attorney develops the case, which will add to the expense of legal fees.
• In litigation following an unsuccessful Collaborative Law approach, some aspects of developing the case may be more difficult (or even impossible) to accomplish. For example, certain relevant facts may no longer be accessible for Discovery.
• If the parties proceed to court, the court may decide that statements made in four-way meetings are not confidential and protected, as they would be in a mediation or in a settlement conference in traditional litigation. Thus, statements by a party made during a four-way meeting could possibly be used later against that party in court.