While many people imagine divorce as a combative, aggressive process that makes former spouses despise each other, this is not always the case. In fact, for many couples who end their marriages, there is still a great deal of love and respect for each other, and they have simply acknowledged that this love and respect is not enough to keep their marriage alive. If you are one of these couples, you may find that while you are going your separate ways, you still share some similar interests, such as protecting your children’s stability and security or wanting to ensure that both spouses are still prepared for retirement.
When you are able to work together and resolve these issues, you may be able to avoid a drawn-out divorce by going through the court system. The collaborative divorce process allows you to resolve your issues without going before a judge at all, while also providing the ability to come up with creative solutions to those issues. At Zegen Law Firm, PLLC, our experienced collaborative divorce attorneys may be able to represent you as you navigate this out-of-court divorce process so you can maintain respectful relationships and boundaries and peacefully resolve your divorce. Call (972) 653-0448 to schedule a consultation in our Dallas office.
What Is Collaborative Divorce?
Collaborative divorce is a unique divorce process that allows couples to settle their divorce without court involvement. The two spouses, along with their attorneys, work out the details of an agreement on all aspects of the divorce, rather than allowing a judge to make the decisions for them. The couple reviews and decides every issue from asset division to child custody, encouraging cooperation instead of adversarial tactics.
There are two significant differences between the collaborative divorce process and others, such as mediation. First, there is no neutral third party. The couple and their attorneys work together to find solutions without the assistance of a mediator or arbitrator. Second, the parties agree in writing that they will not go to court. If either party decides they would rather litigate the case instead, then both parties must retain new attorneys.
Benefits of Collaborative Divorce
Several benefits make collaborative divorce a more attractive option for many couples. However, it is important to know that these benefits are not the only reason a couple may choose this divorce process over the alternatives. For example, a couple may choose it simply because they get along well and see no reason to go to court.
Some of the benefits include:
- Privacy: Any court filings become public record in a standard divorce case. This means personal details, such as sensitive family issues or financial information, end up in the public eye. Collaborative divorce allows families to avoid publicity or embarrassment, especially if the divorce is high-conflict.
- Control: Collaborative divorce gives couples more control over the outcome of their divorce. Instead of allowing a judge to make decisions based strictly on the law, the couple can work together to find customized solutions to fit their unique situation and create a completely personalized settlement that meets their family’s needs.
- Cooperation-Focused: A traditional divorce can create long-lasting tension and be emotionally draining, particularly if the couple goes to court and takes adversarial stances toward each other. Collaborative divorce encourages them to cooperate with each other, reducing conflict and fostering a more amicable relationship between them, which can be particularly important if they must co-parent children together.
- Resource Conservation: Traditional divorce can be expensive, with attorney’s fees, court fees, and paying for multiple experts for each party. While collaborative divorce is not always cheaper than traditional divorce, it can still often save some of the couple’s resources by allowing them to share financial experts, appraisers, or other experts.
These benefits often make collaborative divorce much more desirable for families than a traditional divorce.
Is Collaborative Divorce Cheaper and Faster?
A common misconception is that the collaborative divorce process is always faster and cheaper than traditional divorce. This is frequently true, but it is not always true. Collaborative divorces involve the spouses, their attorneys, and frequently, a variety of experts or consultants. Attorneys, experts, and consultants all need to be paid, and scheduling meetings at times that are convenient for all the parties can be challenging at times. This means that sometimes, collaborative divorce may take just as long and be just as expensive as a traditional divorce, particularly if the couple has complex child custody issues, businesses, or significant assets. Additionally, many couples choose this process because they value privacy and cooperation over efficiency.
Is Collaborative Divorce Right For Your Divorce?
Even when a couple is intrigued by the idea, collaborative divorce is not for everyone. However, there are some questions that couples can consider when determining whether it may be right for them. These questions include:
- Do you want to avoid a long, drawn-out legal battle?
- Is privacy a top priority for you and your family?
- Do you and your spouse want to avoid court?
- Are you willing and able to work together to find mutually agreeable solutions?
- Do you have the resources to hire attorneys and share various experts?
If these describe you, collaborative divorce may be the right choice for you.
Who Is Involved in the Collaborative Divorce Process?
Collaborative divorce always involves both spouses and their attorneys. These parties will always be involved, and are the minimum involved. Other parties involved will vary based on the divorcing couple’s needs and what kind of issues they may struggle to address without assistance.
Other people that may be involved in a collaborative divorce process include:
- Child psychology experts
- Accountants
- Appraisers
- Business valuators
- Financial advisors
- Mental health professionals
While these are the same experts that might be used in a traditional divorce, it is important to note that the attorneys are unique. If couples are considering a collaborative divorce, they will need to seek out attorneys who specialize in collaborative divorce, as it requires specialized training in collaborative law, which is unique from litigation law. While these attorneys may also represent divorce clients in court, they cannot represent a collaborative divorce client if one or both spouses decide to litigate the case instead. The collaborative divorce attorneys at Zegen Law Firm, PLLC have undergone the appropriate training to guide you through the process with knowledge and experience.
Collaborative Divorce Process in Texas
The collaborative divorce process in Texas is recognized under Tex. Fam. Code Ann. § 15.001, which also provides the requirements for the process, such as what is required to be in the written participation agreement. The participation agreement must stipulate that each person is represented by their own attorney, both agree to resolve their divorce using collaborative family law rather than traditional litigation, and both fully and completely disclose all information relevant to the issues being decided, including full disclosure of the value and identities of all assets and liabilities. The process itself takes a rather straightforward approach.
Initial Meeting
The initial meeting occurs when each spouse meets with their respective attorney separately. During this meeting, each spouse and their attorney will discuss what the collaborative process is and whether it is right for the couple’s divorce. Both spouses must agree to commit to resolving their divorce without going to court. If either spouse decides that the collaborative approach is not the right approach, the process will not proceed. Then, the couple would follow the traditional divorce process as explained beginning on page 11 in the What to Expect in Texas Family Law Court from the Texas State Law Library.
Collaboration Agreement
Once both parties have met with their respective attorneys and agree that they want to proceed with the collaborative divorce process, they will sign the collaborative participation agreement. This agreement will outline the terms of this divorce process, including that both parties agree not to litigate their divorce and the consequences that occur if either party decides to withdraw from the process.
Gathering the Team
Collaborative divorce is a team approach to divorce, and this team often consists of more than just the spouses and their attorneys. Once the participation agreement is signed, the team of professionals needed is assembled. This can include financial experts, mental health professionals, and child specialists. These experts are neutral and will work with both parties to find a mutually satisfactory agreement.
The team may also include a process facilitator. If present, this person’s role is to facilitate the meetings, keeping all parties on track, and helping them learn new, effective ways to communicate. They do not assist with making decisions in any way.
Negotiation Meetings
Both spouses and their attorneys, along with any experts they need, will attend a series of meetings to negotiate the divorce terms. This includes determining child custody, dividing assets, and other important issues. However, these meetings will not randomly approach these topics. Instead, there is usually an agenda for each meeting.
Generally, these meetings will approach matters in the following order:
- Exploring and Understanding Interests and Concerns: Either during the initial separate meetings or the initial joint meeting, the attorneys will assist the spouses with exploring, expressing, and understanding the interests and concerns that each spouse has. This is done to bring those issues and concerns to light, but also to help both spouses understand each other and improve communication and cooperation.
- Addressing Interim Issues: One or more early meetings will address interim issues. These are immediate, practical matters that need a temporary agreement or plan to meet urgent needs and ensure stability. These include issues such as living arrangements, parenting time and schedules, temporary child or spousal support, payment of expenses such as mortgages or joint bills, access to funds and assets, and how the spouses will communicate outside of divorce proceedings.
- Information Gathering for Informed Decisions: In litigation, the discovery process requires both parties to exchange information so everyone has all of the same information to work with in making decisions. In collaborative divorce, the parties voluntarily agree to disclose information. This shifts the focus from lawyers making formal requests to everyone determining how to get any missing information most efficiently and easily.
- Asset Valuation: If the couple has significant and/or high-value assets, they may share an appraiser to assist with valuing those assets. This is important to the asset division process and ensuring a fair and equitable distribution of assets as required by Tex. Fam. Code Ann. § 7.006. While spouses can create their own agreement in collaborative divorce, a judge will still need to approve it.
- Creative Problem-Solving: Throughout the process, the spouses will be encouraged to engage in creative problem-solving. While they cannot make agreements that violate Texas law or public policy, they can make agreements that are unconventional or different from standard arrangements found in other divorces.
- Negotiating Agreement: Once interim issues are addressed, the spouses will begin negotiating the long-term issues. Because each spouse has their own interests and concerns, this may take multiple sessions. This can be the bulk of the process, and depending on how long it takes the spouses to come to an agreement on each issue, it can lengthen the collaborative divorce process.
Finally, when the spouses have agreed on all relevant issues, their attorneys will work together to draft the final agreement, which is signed by both spouses.
Settlement Agreement
Once the settlement agreement is drafted and signed by the spouses, it is forwarded to the judge. While the spouses are not required to appear in court, and they are encouraged to find unique and creative solutions to their issues, the final settlement agreement does require court approval. If the judge finds the agreement to be fair and just, they will sign it, and the divorce will be final. If the judge finds that the agreement is not fair and just, they will not sign it, and the spouses will need to review their decisions and create a new agreement.
What Is an Interest vs. a Position?
Collaborative divorce is an interest-based negotiation process. This means that the intention behind negotiations is for both parties to “win.” In order to do that, both parties need to be clear on what their interests are. However, litigation-based divorce (the type most people are familiar with) tends to be more about positions, and this can create confusion and conflict in a collaborative divorce.
Interests vs. Positions
Interests are the things that are most important to the individual regarding the termination of their marriage. To most individuals, positions seem to be the same thing. However, they are not. Consider two parents with two children and a shared marital home. A position may be that both parents insist they need to be given the marital home for the children. An interest would be that the parents want security for their children.
If they stick to positions, the parents will fight over who gets the marital home. If they keep their interest in wanting security for the children in mind, they will consider other options that allow them to satisfy that interest. For example, they may conclude it is better to sell the marital home, split the proceeds, and each parent buys a new, smaller home in the same neighborhood so the children can stay in the same school and go between their parents’ homes easily.
How to Refine a Position Into an Interest
Positions are things like, “I need the marital home for the children,” or “I need to keep my retirement account.” To refine these into interests and make negotiations smoother and easier, individuals should dig deeper than the surface needs. Consider what the material possession or specific arrangement represents. Wanting to keep a home might represent stability for children, while wanting to keep a retirement account intact might represent financial security. Once the individual realizes what the real need is, they can express that need, rather than demanding a specific outcome. This expression allows the spouses to explore all options for meeting that need and find one that is mutually satisfying.
What Happens If the Process Fails?
When a divorcing couple commits to collaborative divorce, they commit to working together to find an agreement and not going to court. While people commit to the process with the best of intentions, there are instances when it does not work, despite the spouses’ best efforts. If this happens, and the process fails, the case would proceed to court for litigation. If the case is going to court, both spouses’ attorneys would be legally required to withdraw. The spouses would then, with or without the assistance of the collaborative divorce attorneys, find new attorneys to represent them in court.
Collaborative divorce is a confidential process, which means that nothing discussed during the process can be used, or even brought up, in court. This means neither spouse can suggest any of the solutions that were presented in the collaborative divorce process. The new attorneys representing the spouses will not have access to any of the information from the collaborative process.
How a Collaborative Divorce Attorney May Assist You
The collaborative divorce process is a cooperative, solutions-oriented method of resolving divorce issues that is less aggressive than litigation, and can frequently be less expensive and faster than litigation. A consultation with a Texas collaborative divorce attorney at Zegen Law Firm, PLLC may provide clarity about whether this is the right kind of divorce for your case, as we review the details of your divorce and the process. Call (972) 653-0448 to schedule your consultation and learn more about your Texas divorce options.
With thirty years of experience Robin Rubrecht Zegen will help you identify and prioritize your goals and she will explain the options available for achieving them. She guides her clients through the transition while helping them maintain their relationships and dignity.
She is a member of the State Bar of Texas Family Law Section; Dallas Bar Association Family Law Section; Collin County Bar Association Family Law Section; Frisco Bar Association, and Plano Bar Association. She is a Master of the Bench in the Curt B. Henderson American Inns of Court.