Overview of the Collaborative Divorce Process in Texas
I. INTRODUCTION TO COLLABORATIVE DIVORCE
Collaborative Divorce is one process option across a spectrum of available processes for the termination of a marriage relationship, ranging from informal kitchen table agreement (also known as an uncontested divorce) to a contested trial that requires that a judge or jury make all the decisions. Collaborative Divorce strives to give families a dignified process between those extremities where families are allowed to focus on resolving their differences in a safe environment outside of the courtroom.
There has been a considerable research focused on divorce and children. In virtually every study, the conclusion is the same. High levels of parental conflict are toxic to children. The Collaborative Divorce process will help you focus on working toward a co-parenting relationship that will allow for healthy post-divorce communication, protect the emotional and mental health of your children and prevent the financial erosion of the marital estate.
As you read this, you might feel such a Collaborative Divorce would be impossible in your situation. There may be hurt, mistrust and anger. It is the rare divorce that doesn’t have some of these feelings. Perhaps the overriding emotion you are feeling is fear. People often experience fear around parenting arrangements, whether lifestyles can be maintained, and how assets and liabilities will be divided. Your Collaborative Divorce attorney has experience in dealing with all these emotions. The goal of the Collaborative Divorce process is to help you achieve your highest goals in a process built on dignity and respect.
II. UNDERSTANDING THE BASICS OF COLLABORATIVE DIVORCE
In a Collaborative Divorce, each spouse is represented by an attorney trained in interest-based negotiation, the structure of the Collaborative Divorce case, and interpersonal conflict resolution skills. At the beginning of your case, the attorneys and clients will enter into a contract, called a “Participation Agreement.” Your attorney will review the Participation Agreement with you. It is important that before you sign the Participation Agreement, you read it, understand it, and feel comfortable with its terms. The Agreement provides that each of you is represented by your own attorney. Notwithstanding the fact that much of the work is done in joint meetings in a problem-solving atmosphere, each party is represented solely by his or her attorney.
In a Collaborative Divorce, your process will progress through a serious of joint meetings where you, your spouse and each of your attorneys are present. These joint meetings are confidential, pursuant to both the Participation Agreement and state law. Accordingly, statements made in the Collaborative Divorce joint meetings cannot be used in a subsequent court case.
The Participation Agreement also requires each of you to fully and completely disclose all information relevant to the determination of the issues, including the identity and value of all assets and liabilities. Before agreements are made, each of you must understand the value of those assets and liabilities. It is also important that before agreements are made, you each understand your budgetary needs and the nature of the income available to support each household.
In some cases, you, your spouse, and the attorneys may decide that additional associated professionals might be helpful to the resolution of your case. For example, you may decide to use the services of a Child Specialist to assist with issues related to parenting. A Child Specialist is a mental health professional that is jointly retained by you and your spouse as a neutral consultant. The Child Specialist is in a unique position to provide assistance to a family. With your consent, the Child Specialist could meet with your child(ren) and you and your spouse to gather information regarding all of your interests and concerns. The Child Specialist will be able to inform you about common reactions children have about divorce, discuss developmental and practical considerations important to making parenting arrangements, and assist you in developing a realistic parenting plan. Additionally, the Child Specialist can serve as a resource after your divorce, to help you and your children through difficult transition periods as the children get older.
Alternatively, you may choose to retain a process facilitator. A process facilitator’s primary role is to facilitate the joint meetings and assist you in creating a new communication patterns that will allow you to optimally work within the Collaborative Divorce model.
Finally, you could choose to engage the services of a neutral financial planner. A financial planner would assist you with preparing a comprehensive summary of your assets and liabilities, as well as developing a realistic post-separation budget. The financial planner may also provide projections to assist with understanding the long-term implications of various settlement options.
While at first blush, this might feel like a “cast of thousands”, in reality, the hiring of neutral professionals is frequently a more cost-effective way to “outsource” specific issues to professionals that understand the Collaborative Divorce process, and will likely charge at a lower hourly rate than your attorney. In your case, you and your Collaborative Divorce attorney may choose to use all, some or none of the associated neutral professionals.
The Participation Agreement requires that both attorneys are precluded from representing their respective clients in the event the case reaches impasse, or in the event either party chooses to withdraw from the process. If additional professionals are engaged, they too are precluded from participation in the court process. If you find that you are “stuck” on certain issues, other options, such as impasse mediation or neutral evaluation may assist in resolving the impasse. If the impasse cannot be broken, your attorney will assist you in transitioning your case to an attorney who will take the case to court for you.
III. THE COLLABORATIVE DIVORCE CHOREOGRAPHY
One of the critical components of the Collaborative Divorce process is that you and your lawyer will prepare for meetings and structure the negotiation along the same path as your spouse and his or her lawyer. Your lawyer will meet with you to discuss your concerns and the agendas for the joint meetings.
Your lawyer will ask you to focus on your interests, concerns, goals and objectives. This is important because you will be engaging in “interest based” (often called “win-win”) negotiation. In essence, your interests are those things that are most important to you regarding the termination of your marriage. When you think about your interests, you might ask yourself how you will be able to measure whether you have a satisfactory agreement when your case is completed. Interests are in essence, the big picture. For example, an “interest” might be security for the children. This differs from a “position.” A “position” would be . . . “I have to have the house for the children.” While retaining a house might be an option to meet an interest, in the Collaborative Divorce process, it is important to look at all of the various options that meet important interests. An interest might be, “It is important to me to have security in my retirement years.” A “position” would be . . . “I must retain my retirement plan.”
After your lawyer has an opportunity to understand what is important to you, your lawyer will communicate with your spouse’s lawyer. This will give the lawyers an opportunity to learn about your case from your spouse’s perspective, and to begin discussing how information can be efficiently gathered. If there are immediate crisis issues, the lawyers will discuss a framework for focusing on those issues.
The lawyers will assist you in creating an agenda for the first joint meeting. The joint meetings generally take place in two-hour sessions, and the majority of the Collaborative work is accomplished in these meetings. Between meetings, you generally have ample opportunity to meet privately with your attorney, as may be needed. At the first joint meeting, the Participation Agreement will be reviewed. You should spend some time reviewing the Participation Agreement before the joint meeting to be sure that you understand its terms. The lawyers will also provide an overview of the entire process with you, and reiterate communication guidelines helpful for effective joint meetings.
For many people going through the termination of their marriage, the idea of a meeting with their spouse and their spouse’s attorney can produce real anxiety. The lawyers are aware of your anxiety, but if you are particularly anxious, you should share that with your attorney.
After the joint meeting, you will likely spend some time with your attorney discussing what needs to be done and agendas for upcoming meetings. If you have any concerns about the Collaborative Divorce process, you should always share those concerns with your attorney.
IV. ROADMAP OF THE COLLABORATIVE DIVORCE PROCESS
In some cases, couples terminating their marriage are dealing with immediate issues, and in others, there is the luxury of focusing on more long-term issues. Generally speaking, the Collaborative Divorce process involves the following steps:
- Exploring and understanding each spouse’s interests and concerns
- Addressing interim issues
- Gathering all information necessary to make good decisions
- Understanding the value of each marital asset (may require a neutral appraiser)
- Creative problem-solving
- Negotiating agreement
- Finalizing and signing legal documents
Throughout the process, your attorney will work with you to assist in the negotiation of your Collaborative Divorce. The attorney will help elicit your concerns and help you to understand your spouse’s concerns. Your attorney will work to ensure all of the necessary information is on the table and will assist you in generating creative options and in analyzing those options.
There are a lot of different ways to analyze options. One way is to determine how the court system might determine a particular issue. Another is to determine how a particular option actually fits into your family, regardless of the court outcome. If you choose an option that is very different than a possible court-generated outcome, your attorney may want to ensure you are fully apprised of the consequences of that decision. This is not to preclude you from going in a specific direction, but rather to insure you are moving in a direction with full awareness. It is not unusual for couples in the Collaborative Divorce process to select options that are far more creative and tailored to the needs of their family than court-generated decisions.
Special thanks to Sherri Goren Slovin (http://www.slovinlaw.com/) for her permission to adapt this content from her 2005 article entitled Understanding the Basics of Collaborative Family Law.