Collaborative Law Attorneys in Texas
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).
What is collaborative law?
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.
How is collaborative law different from going to court?
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.
Is collaborative law right for all divorces or other family law cases?
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.
Advantages of collaborative law in Texas
- It allows the parties to control the settlement process without fear that if negotiations break down a judge or jury will end up making decisions for your family.
- The cooperative environment collaborative law works through can avoid exposing the children to the additional hostility litigation can sometimes cause.
- The collaborative law process can improve communication between the spouses. That can be beneficial to the parenting relationship after the divorce.
- Because both spouses agree to the terms of the divorce there is less likelihood that either will violate the terms of the parenting arrangement or property division after the divorce.
- Collaborative law can shelter some private family and financial information from the public record and better maintain privacy than litigation.
Disadvantages of collaborative law in Texas
- If there is no trust there is a strong likelihood collaborative law will not work or will not work well.
- Collaborative law does not work and should not be employed when there is ongoing family violence or a history of family violence.
- If you believe you have unequal bargaining power then collaborative law may not be the best approach for you because you likely cannot obtain a fair result from the divorce without leverage.
- There may be legal issues to resolve before settlement negotiations can occur.
- Collaborative law does not use the court’s discovery rules to disclose information about the family’s assets.
- Collaborative law is not effective when other legal issues must be addressed.
- Collaborative law can be more expensive than litigation.
- By entering into collaborative law the spouses agree to a good faith and “fair” negotiation which does remove some of the negotiation tactics that can produce better results for a client.
Why do I need to hire a collaborative law attorney in Texas?
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