Collaborative law is a relatively new approach to resolving divorces and other family law disputes in Texas. The legislature approved it as a technique for dispute resolution as part of the Texas Family Code. In a collaborative law divorce or child custody case, the parties and their attorneys agree to make a good faith effort to resolve the case through collaborative law instead of litigation. It gives the parties the most say over the family relationships and assets (in a divorce).
Collaborative law is a legal process to resolve divorces and other family law cases outside of the courtroom. It focuses on negotiation to form agreements rather than adversarial court hearings. Collaborative law works most often in cases where the spouses or parents have a history of good mutual decision-making.
At the start of the collaborative law process the parties and their attorneys sign a participation agreement that sets the boundaries and procedures for the process. The parties and their attorneys can agree to whatever terms they think will reach a mutually agreed result. The parties often agree to jointly hire neutral experts to weigh in on important issues such as asset division, business valuation, custody issues and child support.
Over the course of the collaborative process the parties and their collaborative law attorneys will meet as scheduled in the agreement to address each important issue in the divorce until there is a final agreement. Once the parties agree on all issues the attorneys will draft final documents and file them with the court to create a court order.
In a typical divorce or child custody case, the parties rely upon the judicial process to guide resolution. That process is adversarial meaning each side builds its own case with its own experts and the two sides battle it out. They may leave it to a judge or jury to decide what to do. They may also reach an agreement in mediation or informal settlement negotiations.
In a typical divorce or other family law case an agreement is often treated as the best of the worst options. Without an agreement the parties must continue to engage in litigation. That means more money spent and more stress. The judge or jury may decide the case less favorably to either or both sides. The agreement becomes a way for everybody to give up something to avoid a potentially worse result. That is why an agreement often arises when the parties run out of money or the appetite for conflict. Collaborative law treats the agreement as the best form of resolution.
Due to its adversarial nature, litigation can add cost, stress and conflict between the parties. This can delay resolving a case and create future conflict that may result in more litigation.
Definitely not. Collaborative law requires a high degree of cooperation and trust between the parties. Even when there is conflict between the parties in the collaborative process, they must continue to agree to trust the process and make a good faith effort to continue to participate. That level of cooperation and trust does not exist in all marriages or co-parenting relationships. Collaborative law resolves a minority of family law cases in Texas for this reason.
The parties need to be honest about their relationship before jumping into this process. If the parties fail to reach a final agreement, then the alternative is litigation. If that happens, the participation agreement requires the collaborative law attorneys on both sides to stop representing their clients. Effectively, both sides will start over from scratch hiring new attorneys and starting litigation from the beginning. That makes the entire process far more expensive than simply litigating the case from the start.
Collaborative law attorneys add value to this process in many ways. The process is not intuitive and having trained counsel guiding both sides will help keep the process moving forward in the right way. The attorneys can help find neutral experts familiar with family law proceedings to ensure good value out of hiring experts. If friction arises, the collaborative law attorneys have training to help get the parties back on track. They also have an incentive to keep both sides engaged in the process.
Aside from the unique aspects of the process, at the end of the day you still need an experienced divorce attorney to advise you about the legal issues involved in your case and whether the terms of the agreement are truly fair to you and your goals
