Let’s Talk Collaborative Law
Collaborative Law is the new kid on the block for divorce, having first come into existence in Texas in 2001. Collaborative Law is designed to allow the parties, with the assistance of their attorneys to come to agreements which are beneficial to the children of the marriage, the parties, and the just and right division of property of the parties. Although I am a collaborative lawyer and participate with clients who wish to engage in a Collaborative Law process, it is important for the client to realize the advantages of Collaborative Law and the disadvantages. The client should always make the decision regarding which way to approach the process of divorce, understanding that Collaborative Law is not available if both parties do not agree to the Collaborative Law process. Collaborative Law relies on the attorneys and parties being willing to fully disclose all information, work collectively for the common good and agree on the steps to be taken during the process. With the commitment of all concerned, Collaborative Law can be beneficial to those who are interested in Collaborative Law. It is important that the client make the decision to proceed with Collaborative Law, not based upon the preference of the attorney they chose, but based upon a complete understanding of the Collaborative Law process.
- The Statute:
Tex. Fam. Code § 6.603 (2009)
§ 6.603. Collaborative Law
- On a written agreement of the parties and their attorneys, a dissolution of marriage proceeding may be conducted under collaborative law procedures.
- Collaborative law is a procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate. The parties’ counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement.
- A collaborative law agreement must include provisions for:
- full and candid exchange of information between the parties and their attorneys as necessary to make a proper evaluation of the case;
- suspending court intervention in the dispute while the parties are using collaborative law procedures;
- hiring experts, as jointly agreed, to be used in the procedure;
- withdrawal of all counsel involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute; and
- other provisions as agreed to by the parties consistent with a good faith effort to collaboratively settle the matter.
- Notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule or law, a party is entitled to judgment on a collaborative law settlement agreement if the agreement:
- provides, in a prominently displayed statement that is boldfaced, capitalized, or underlined, that the agreement is not subject to revocation; and
- is signed by each party to the agreement and the attorney of each party.
- Subject to Subsection (g), a court that is notified 30 days before trial that the parties are using collaborative law procedures to attempt to settle a dispute may not, until a party notifies the court that the collaborative law procedures did not result in a settlement:
- set a hearing or trial in the case;
- impose discovery deadlines;
- require compliance with scheduling orders; or
- dismiss the case.
- The parties shall notify the court if the collaborative law procedures result in a settlement. If they do not, the parties shall file:
- a status report with the court not later than the 180th day after the date of the written agreement to use the procedures; and
- a status report on or before the first anniversary of the date of the written agreement to use the procedures, accompanied by a motion for continuance that the court shall grant if the status report indicates the desire of the parties to continue to use collaborative law procedures.
- If the collaborative law procedures do not result in a settlement on or before the second anniversary of the date that the suit was filed, the court may:
- set the suit for trial on the regular docket; or
- dismiss the suit without prejudice.
- The provisions for confidentiality of alternative dispute resolution procedures as provided in Chapter 154, Civil Practice and Remedies Code, apply equally to collaborative law procedures under this section.
- What Are the Advantages of Collaborative Law?
Those who are committed exclusively to Collaborative Law will tell you that the advantages are multiple, i.e.:
- Collaborative Law is more dignified;
- Collaborative Law is less stressful;
- Collaborative Law is less expensive;
- Collaborative Law provides an opportunity for self respect;
- Collaborative Law provides an opportunity to show respect for your soon to be ex-spouse;
- Collaborative Law allows you to control the outcome;
- Collaborative Law allows privacy;
- Collaborative Law allows you to make the children’s interests your primary concern;
- Collaborative Law results in the best agreement possible for your unique situation.
Those attorneys who are committed almost exclusively to Collaborative Law, attempt to convince the client that these goals cannot be accomplished without the use of the Collaborative Law process. This is simply untrue. Almost all divorces, even those with multiple contested issues, resolve in mediation, with the parties having control of their outcome. Throughout the Standard Divorce Procedure process, the parties have control of their privacy by determining, with their counsel, what, if any, matters they wish to take to the court. Although Collaborative Law allows parties to accomplish items A. through H. above, the implication is that the alternative, the Standard Divorce Procedure, does not allow parties to accomplish the same objectives. The reality is that the Standard Divorce Procedure is more controlled by the court, but has every opportunity for parties to accomplish everything listed in A. through H. above. Whether the Standard Divorce Procedure results in loss of dignity, greater stress, greater expense, loss of respect, loss of control, greater harm to the children, and no opportunity to make the best agreement possible; depends on the parties, not whether the parties have chosen Collaborative Law. The implication is also that the Standard Divorce Procedure requires all parties to bare their transgressions, financial status and souls to the public. This again is not true. The flow of information to the Court system is again up to the individuals involved. It is misleading to imply that reasonable people will suddenly revert to madness because they don’t choose Collaborative Law. If the parties are able to reach agreements in Collaborative Law, they are able to reach agreements in the Standard Divorce Procedure process. Expense of Collaborative Law or the Standard Divorce Procedure is dependent on the clients, not the process; and, if Collaborative Law does not work, the cost of changing attorneys and beginning anew can sometimes double the costs of divorce. If the parties are unable to reach agreements in Collaborative Law, it is also likely that they will be unable to reach agreements in a Standard Divorce Procedure. In either case, the end result is providing all information concerning their property and/or children to the court, and allowing the court to make the decisions which the parties are unable to make for themselves.
The processes in Collaborative Law are the same as the processes in a Standard Divorce Procedure. A petition is filed with the court, a determination is made regarding the rules that apply while the divorce is pending, a determination is made regarding what assets exist and the value of the assets, and a determination is made regarding what each party believes is in the best interest of their children; and finally, a determination is made regarding the division of property and the possession, support and rules of conduct regarding the children after the divorce is final. How many of those determinations are made by the parties and how many by the court is in the hands of the parties involved whether the initial choice is Collaborative Law or a Standard Divorce Procedure.
- What Are the Disadvantages of Collaborative Law?
When choosing the Collaborative Law process, there are three major disadvantages:
- f Collaborative Law is elected by the parties, no Court action can be initiated by the Court for a period of two years. In essence, if one party wishes to drag their feet, the only alternative for the other party, without “opting out” of the collaborative process, is to continue to attempt to reach agreements for two years prior to the Court having the ability to press the parties to finish.
- A.Neither party can force disclosure during the Collaborative Law process if the other party is reluctant to provide documents or information which is requested. Again, the Collaborative Law process relies totally on the good faith of the attorneys and parties. In the Standard Divorce Procedure process, documents or other information can be compelled by the Court in a timely manner if compelling the documents is required.
- A.If either party elects to “opt out” of the Collaborative Law agreement, they cannot continue to use the attorney who has represented them in the Collaborative Law process. If either party opts out of the Collaborative Law process, both parties must engage new attorneys to continue the process of divorce through a Standard Divorce Procedure. (Some attorneys have proceeded with a Collaborative Law model without a Collaborative Law agreement, i.e., agreeing to go forward as cooperatively and fully disclosed as in Collaborative Law, but not entering into the Collaborative Law agreement which requires replacing the attorney. Some have referred to this process as “cooperative” rather than collaborative.)
- Who Is Best Suited for Collaborative Law?
- Property Division
The ideal candidates for Collaborative Law when there is property to be divided, are those who are honest, can rely on the statements of their spouse, trust that their spouse is dealing honestly and fairly, and have a decent working knowledge of the property to be divided. Although Collaborative Law can work when one party has no knowledge of the nature and extent of the property, the process is made more difficult, but is frequently still successful.
The ideal candidates for Collaborative Law when there are children of the marriage, are those who can put their own needs and wishes aside and focus on the children’s needs and wishes. Although there are some bad parents, marriages with bad parents rarely end up in a Collaborative Law process.
- Balance of Power
When one party is the dominant party in the marriage, it is likely that they will remain the dominant party in the Collaborative Law process. There is frequently a disadvantage for the more submissive party. Frequently the marital dynamics play out in the dynamics of the Collaborative Law process, and the more submissive party is more likely to be disadvantaged. In these cases, the advocate attorney is more likely to accomplish the goals of the submissive party than the collaborative attorney. After the parties have chosen Collaborative Law, they frequently stay in Collaborative Law because they have spent so much on Collaborative Law process that the idea of reverting to a Standard Divorce Procedure is daunting, and the attorney committed to Collaborative Law continues to insist the error is in the thought processes of the client rather than the system of Collaborative Law.
- Property Division
- Children’s Issues
Diane Snyder has consistently been an advocate for children. Having represented many children, and having represented many parents who are either litigating or attempting to resolve issues regarding children through a Collaborative Law process, Diane Snyder is consistently advising clients on the manner in which the process of divorce has the least negative impact on the children of the marriage. It does not matter whether the process is Collaborative Law or a Standard Divorce Procedure, children are impacted. It took two people to create these children, and it takes two people to create an environment which provides the best chance for children to exit their parents’ divorce with the least damage. A study some time back asked parents of children how their children were coping with their divorce. Only 23% indicated that the children were having problems with the divorce. When the children of those same parties were asked about problems with their parent’s divorce, over 85% of the children reported moderate to severe problems coping. Parents are so embroiled in their own emotional upheaval that they have difficulty seeing their children’s pain. Whether Collaborative Law or a Standard Divorce Procedure, how the parents involve the children in their divorce or shelter them is a responsibility of the parent, and not a result of the process chosen for the divorce. When parents realize they are making a choice that the children must accept and the children will still be a part of both parties when the divorce is completed, they are better equipped to deal with the impact on the children. This acceptance of the responsibility by the parents is essential for the children’s development and adjustment. Again, the children’s well being is not determined by the process chosen by the parents to end their marriage, it is determined by the parents’ behaviors during the process.