Collaborative divorce offers a practical, non-hostile approach to dispute resolution. While collaborative practice can be helpful in a wide variety of contexts, the benefits of minimizing conflict and prioritizing cooperation tend to be most deeply felt in family law cases. Nowhere is this impact more obvious than in child custody arrangements. Not only can collaborative practice foster a non-combative environment for the process of devising child custody arrangements, but in many cases, custody arrangements devised through genuine cooperation between the parents can be more “workable” over the long term, for both households, than the decisions ordered by a judge. At Zegen Law Firm, PLLC, we are enthusiastic about the possibilities of collaborative divorce, and we welcome your questions. Call our office in Dallas today at (972) 653-0448 to schedule a conversation.
What Is the Difference Between Collaborative Divorce and Traditional Divorce?
Both collaborative divorce and traditional divorce have as their end goal the legal dissolution of a marriage. While individuals tend to think of their marriages in terms of shared time, interests, and dreams for the future, courts approach divorce in pragmatic terms related to determinations regarding how assets and debts that were formerly held by both spouses together will be divided now that the spouses wish to go their separate ways. Legally, all property must have a clear owner at the end of the divorce, so courts will step in to make those determinations when the spouses cannot come to an agreement on their own. The same basic rubric applies to child custody arrangements, although in this case, it is not ownership, but legal responsibility for another human being’s welfare.
Collaborative divorce and traditional divorce litigation each resolve the same core concerns to ensure that each asset and every debt is properly allocated and that any children of the marriage have a place to call home. However, they go about the process in different ways.
How Traditional Divorce Works
Traditional divorces may be contested or uncontested. “Contested” generally means not that one spouse is objecting to the idea of the divorce itself, but rather that the spouses have been unable to agree on one or more of the matters, such as division of marital property or any child custody arrangements, that legally cannot be left unresolved when a Texas court orders a divorce. Contested divorces are resolved through litigation: Each side argues its case in court before a judge, and the judge issues a decision on each matter on which the spouses have been unable to come to an agreement. Often, this is only a small subset of the total matters confronting the spouses.
“Uncontested” divorces, by the same token, are not necessarily ones in which both spouses agree that getting a divorce is a good idea. Instead, they are ones in which the spouses have been able to reach an agreement on how all legally required matters should be handled, given that a divorce is happening. Often, divorces that start contested become uncontested through interventions such as court-ordered divorce mediation. The parties are eventually able to submit to the court an agreement that establishes how marital property will be divided, whether either spouse will receive post-divorce financial support (alimony) from the other (and if so, how much and for how long), and custody arrangements for any children the couple may have together. Custody arrangements tend to be subject to somewhat closer scrutiny than some of the other matters agreed between spouses in a divorce, since Texas courts are bound to ensure that final orders serve the best interests of each child. Usually, custody orders will be accompanied by child support orders, since both parents are expected to contribute to their children’s financial maintenance.
How Collaborative Divorce Works
Collaborative law is a relatively new approach to dispute resolution that, as the Legal Information Institute (LII) explains, is used primarily (but not exclusively) in family law cases, particularly divorce. As the American Bar Association (ABA) notes, collaborative law has been growing in popularity for several years and has found widespread approval with judges thanks not just to its efficacy in preventing the tense showdowns that can often characterize traditional divorce cases, but for the emphasis this approach puts on working with professional legal representation trained in collaborative law.
Working With Collaborative Law Attorneys
Family cases tend to see a high degree of pro se representation, and there is often concern that individuals representing themselves in legal proceedings may be at a disadvantage when the other party is represented by an attorney. Obviously, many pro se litigants can and do represent themselves successfully in family law matters. However, one of the distinguishing features of collaborative law, as compared to mediation or merely an amicable divorce, is that in collaborative divorce, each spouse must be represented by his or her own attorney, who must provide a statement confirming their commitment to participating in a collaborative family law process.
Collaborative Law Commitments
Those required statements indicate another way in which collaborative divorce differs from other methods of dispute resolution that also seek to minimize conflict and prioritize cooperative approaches to solving mutual problems: Tex. Family Code § 15.102 specifies that a collaborative family law process begins only when the parties sign a Collaborative Family Law Participation Agreement. As one of the first states to enact the Uniform Collaborative Law Act, Texas outlines the minimum requirements for such agreements in Tex. Family Code § 15.101. Either of the spouses can withdraw from their agreement and choose instead to pursue a more traditional approach at any time. They will have to seek alternative legal representation or represent themselves. However, an attorney who represents a client in a collaborative law matter is barred from representing that client in traditional litigation related to the same case.
Differences Between Traditional Divorce and Collaborative Divorce for Child Custody
Ideally, the well-being of their shared children should be a major concern for any divorcing parents. The parents could work together to develop a plan for sharing custody so that each child would spend time with both of his or her parents regularly, and child support would be established to ensure that every child’s basic material needs would always be met, no matter which parent’s house they happened to be in at any given moment.
Traditional Divorce: Child Custody Challenges
Unfortunately, in the often adversarial atmosphere of a traditional divorce, it can be easy for parents to lose sight of these priorities, even if they insist they have their children’s best interests at heart. The negative feelings many divorcing spouses have about each other may lead them to be suspicious of each other’s motives and intentions as parents, not just partners, and in some sad cases, this suspicion may be well-earned. Power struggles are common in child custody determinations during a traditional divorce, and children can sometimes end up feeling more like pawns than cherished members of a family.
Collaborative Divorce: Child Custody Considerations
Concern for the potentially negative impacts of divorce on their children is among the many reasons why some spouses consider the collaborative approach to their parting of ways. While not appropriate to every situation, collaborative divorce offers divorcing parents important opportunities to reduce stress for their children and make sure that they will find a safe and loving environment in each parent’s home. An attorney with Zegen Law Firm, PLLC may be able to help you evaluate whether collaborative divorce makes sense for your family.
Benefits of Collaborative Divorce for Child Custody Arrangements
Perhaps more than any other aspect of a divorce with children, custody arrangements stand to have long-term consequences for both of the former spouses and lifelong effects on their children. Every family is different, but child psychologists generally agree that children benefit from seeing their parents model healthy conflict resolution skills. Collaborative divorce gives many parents a chance to show their children that even “breakups” can be handled with mutual respect and a cooperative approach to resolving practical questions – lessons children can apply over their lifetimes.
Those lessons are rarely more important than when their outcomes impact children directly, as in child custody arrangements. The collaborative approach to child custody:
- Recognizes the children as individual humans whose daily lives will be affected by the divorce: Usually, this recognition also implies adopting strategies, both during the divorce and in custody arrangements, aimed at minimizing the disruption to each child’s schedule while still ensuring that they spend time with both parents. In some cases, neutral specialists – such as child psychologists – may be called on to lend the benefit of their expertise.
- Prioritizes the practical over the personal: The time a child spends with one parent is necessarily time not spent with the other, so it is common for child custody arrangements to take on a “zero-sum” framing, even in otherwise amicable divorces. Collaborative practice aims to reframe the conversation – no one can spend 100% of his or her time with any one person, or in any single activity. Parents going through a collaborative divorce process are often asked to consider how they can balance their schedules to be maximally present when their children are in residence, and take advantage of their solo time when their children are in the other home.
- Encourages cooperative thinking: Some of the most common post-divorce complaints involve adjustments to custody arrangements – often minor and temporary deviations regarding pick-up and drop-off. These disputes can be highly stressful to children, not just during the divorce, but over the years that follow. Collaborative divorce nudges parents in the direction of establishing frameworks in the present for how they will resolve differences in the future – prompting them, in other words, not just to resolve their current disagreement, but to put in place the tools that will make it easier to resolve disagreements that arise in the future.
One of the most important things to remember about child custody arrangements as you move through a collaborative divorce is that your children are people – individual, separate people, with their own needs and preferences that often have nothing to do with what either parent wants, and will rarely be the same for any two children, even in the same family. Taking the focus off “winning” against your spouse frees you up to train attention on what your children individually are telling you, with words or with the small changes to their daily habits that develop during a divorce. Often, this is information parents can use to formulate child custody arrangements that are based on their children’s needs, rather than parental preference.
Speak With a Collaborative Divorce Lawyer in Dallas
Texas has taken a forward-thinking approach to the adoption of collaborative law in family cases. Collaborative divorce can be especially beneficial when the divorcing couple has children together, as child custody arrangements are often among the more tense aspects of traditional divorce proceedings, and child custody decisions have lifelong repercussions for the children involved. Contact Zegen Law Firm, PLLC to schedule a consultation and discuss whether collaborative divorce may be the right path forward for your family. You can reach our Dallas office by calling (972) 653-0448 today.