Collaborative law is a relatively new approach to divorces but one approved by the legislature and added to the Texas Family Code. Collaborative law is a method of reaching a settlement on property division and child issues through a semi-formal negotiation process without the threat of litigation if a settlement is not immediately reached. To use collaborative law, both spouses hire attorneys and everybody agrees to a collaborative law agreement that sets the ground rules for how negotiations will occur. Part of the agreement includes an agreement by both sides not to use litigation through the court. The parties work together but if a settlement cannot be reached within a set period of time the collaborative law attorneys must withdraw and the spouses must hire new counsel and pursue litigation or other methods to complete the divorce.
Collaborative law requires trust and willingness to work together
Collaborative law only works when both spouses and their attorneys are truly willing to work together. The collaborative law relationship is built on trust. Trust that the parties are disclosing all the information they are supposed to and working in good faith to reach a settlement. That is both the key strength and weakness of collaborative law. If trust and good faith really exist then collaborative law can create a settlement much easier than litigation. However, if trust and good faith do not exist then collaborative law will not produce a good result and it will only waste time.
If trust did not exist in the marriage then there may not be a good reason to believe it is going to appear during the divorce. Collaborative law rarely works well in very emotional divorces or divorces where the parties want to bitterly dispute everything. However, it is an effective method i some cases. Consider the advantages and disadvantages below.
Advantages of collaborative law
- It allows the parties to control the settlement process without fear that if negotiations break down a judge or jury will end up making decisions for your family.
- The cooperative environment collaborative law works through can avoid exposing the children to the additional hostility litigation can sometimes cause.
- The collaborative law process can improve communication between the spouses that can be beneficial to the parenting relationship after the divorce.
- Because both spouses agree to the terms of the divorce there is less likelihood that either will violate the terms of the parenting arrangement or property division after the divorce.
- Collaborative law can shelter some private family and financial information from the public record and better maintain privacy than litigation.
Disadvantages of collaborative law
- If there is no trust between the spouses there is a strong likelihood collaborative law will not work or will not work well.
- Collaborative law does not work and should not be employed when there is ongoing family violence or a history of family violence because collaborative law limits access to protective measures available through the court. Similarly, if there are threats of family violence you should not participate in collaborative law.
- If you believe you have unequal bargaining power then collaborative law may not be the best approach for you because you likely cannot obtain a fair result from the divorce without some leverage to gain an equal position at the bargaining table. Collaborative law does not provide good opportunity to gain leverage.
- There may be legal issues that need to be resolved before settlement negotiations can occur. Because collaborative law is a non-judicial settlement process, the resolution of the initial legal questions will prevent collaborative law from being a viable option.
- Collaborative law does not use the court’s discovery rules to disclose information about the family’s assets. If either spouse is not fully honest in disclosing all of the information he or she is supposed to under the collaborative law agreement, the other spouse cannot use the court’s authority to compel disclosure. In non-collaborative law divorces the parties can use the court’s authority to compel disclosure.
- Collaborative law is not effective when other legal issues must be addressed, such as legal action to enforce prior child-related court orders or lawsuits by one spouse against the other in addition to the divorce, such as an intentional infliction of emotional distress or assault lawsuit.
- Collaborative law can be more expensive than litigation, especially if a settlement cannot be reached under the collaborative law agreement and the spouses must hire new lawyers and proceed with litigation. It is generally not any cheaper to hire an attorney for collaborative law than it is for a contested divorce through litigation. Sometimes it can be much more expensive.
- By entering into collaborative law the spouses agree to a good faith and “fair” negotiation which does remove some of the negotiation tactics that can produce better results for a client. It is intended to take away the “dirty lawyer tricks” that might get you a better settlement than collaborative law. That does not mean collaborative law will definitely get you a fair settlement. The trust and good faith that collaborative law relies on can be an illusion. There is no way to know for sure whether your spouse is being completely honest and not concealing information.