Collaborative Divorce is a different process of burying a dead marriage that is often less painful and scarring both to the spouses and to their children. Fighting in divorce court about property, custody, and support is emotionally draining, expensive and makes post-divorce communication more difficult. The Texas legislature, whatever its other faults may be, has made Texas the first state to recognize a new way of divorcing called collaborative law, and such is in full bloom in Dallas and surrounding areas.
Under Texas’ collaborative law statute, the husband and the wife agree to an open, transparent process of negotiating the terms to end their marriage. Rather than public hearings in divorce court to settle their differences, the parties sit together with their two lawyers in a series of private conferences. The overall goal is to settle property, custody and support questions in a way that recognizes and honors the interests of each spouse and gives the two families that result from the divorce maximum chances of success and happiness.
The hammer and the glue under the Texas collaborative law statute is the requirement that after the divorcing couple commits to collaborative law, neither can ask the court for help against the other spouse without firing his or her collaborative law lawyer and getting another lawyer for court. Both parties and both their attorneys sign a collaborative law participation agreement at the beginning that commits them to open and polite communication, to voluntary and complete exchange of financial and other information, and to respect the other’s interests. Either party can stop the collaborative process, but both attorneys who worked under the collaborative agreement are then prohibited from continuing with the case.
Removing the possibility of asking the court to resolve the problems the parties run into during negotiations changes the tone of discussions. It reinforces the parties’ up-front commitments to try to work through the issues in four-way, face-to-face meetings and to be honest and open about the facts relevant to ending their marriage. the pledge and commitment to work out a settlement is the overarching and consistent goal and agreement of the parties in the process. If either party breaks those promises, the other may choose to end the collaborative process.
Collaborative law four-way meetings typically last two hours and occur two weeks apart. The parties have homework in between developing budgets, gathering information about income, assets and liabilities, and looking at various custody arrangements that may work for the children. Husband, wife and their lawyers look at the underlying interests each party has and frequently discover that many of their important interests, such as economic security for their children, are the same. The challenge is to work out solutions that maximize satisfaction both of the parties’ shared interests and of their conflicting ones.
In many cases, other helping professionals become members of the collaborative “team” to deal with issues that may arise in the case. For instance, a financial professional may be hired to reconstruct the historic “burn rate” of the family to figure out what resources will be needed in the future. Or other professionals can assist with thorny child placement or possession issues, like helping the kids adapt to the evolving new family units. The team helping the parties–and the kids– can be expanded and contracted as necessary.
Exploring each party’s important interests and looking at options to satisfy them require a level of maturity and ability to think long-term which some divorcing couples don’t have. The hurt, the anger, the impulse to protect oneself when the marriage’s failure can no longer be ignored or avoided, often produces a desire to inflict pain. Attacking in court is an effective way to hurt a spouse, if the parties have the money to litigate effectively. One can make his or her dirty laundry public, and may be able to force friends and business associates to give sworn testimony. One spouse can certainly make divorce litigation take up a lot of the other spouse’s time and money. A big problem is that effort and expense required of one spouse will be undoubtedly required of the other.
Sometimes a “War of the Roses” is appropriate and necessary. A spouse’s terminal case of financial dishonesty dooms the collaborative process and narrows the options “to fight or flight.” For most couples at the end of marriage, however, enlightened self interest and commitment to their children’s well being make the new collaborative law process a serious candidate as the best process to settle up and move on.
The attorneys at Raggio & Raggio have handled Collaborative cases for years, and will be happy to discuss the suitability of the process to your particular situation.