Texas Collaborative Divorce: A Kinder, Gentler Process

Divorce is often adversarial in nature. Interests clash, lines are drawn, and other family members are often caught in the crossfire. Many divorcees leave the courtroom dissatisfied, wondering, “Isn’t there a better way?” This is where the collaborative divorce process comes in. Read this article to learn more about collaborative divorce and discover if it’s right for your family.

Topics to Explore

• What is Collaborative Divorce & When Did it Begin?
• How Does Collaborative Divorce Work?
• What Happens if We Reach an Impasse?
• The Rules and Regs. of Collaborative Divorce
• When Collaborative Divorce May Not be a Good Fit

Collaborative Divorce: Background Information

Collaborative divorce began in 1990 with Minneapolis attorney Stuart Webb. Webb founded the process in response to the numerous roadblocks he kept running across during divorce litigation.

Webb said he would no longer go to court for his divorce clients. Instead, he would help them work out their problems outside the courtroom. If Webb’s clients still opted to go to court, he would withdraw his counsel and hand over the case to a more litigiously minded colleague.

Many municipalities began following Webb’s example. In 2001, Texas became one of the first U.S. states to pass the Collaborative Family Law Act.

Texas Collaborative Family Law Act

“It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including disputes involving the conservatorship of, possession of or access to, and support of a child, and the early settlement of pending litigation through voluntary settlement procedures.” Tex. Fam. Code § 15.001

The Collaborative Family Law Act provides an alternative to the traditional divorce lawsuit. Both spouses must agree that they will remove the decision-making from the court and instead make those decisions together.

Collaborative divorce is meant to minimize the more contentious elements of the typical divorce litigation process. It is a way for you and your former spouse to preserve your relationships with your children, extended families, and even mutual friends.

How Does Collaborative Divorce Work?

The collaborative family law process is built around these three principles:

1. no court intervention
2. transparency and full disclosure
3. interest-based negotiation

Source: COLLABORATIVE FAMILY LAW: A MEANS TO A LESS DESTRUCTIVE DIVORCE, 70 Tex. B. J. 196, 196

As in divorce litigation, you and your spouse must each retain your own collaborative divorce attorney. Due to ethical concerns, the same lawyer cannot represent both of you in a divorce in Texas.

No Courts and Full Transparency

Once the parties have committed to the collaborative law process by signing a participation agreement, your Texas collaborative divorce attorney will file a Notice of Collaborative Law Procedures with the court. This gives notice to the court that the parties are opting out of litigation, and it prevents the court from acting on the case for up to two years.

Once the parties reach a Collaborative Settlement Agreement,  the lawyers draft an Agreed Final Decree of Divorce and enter it with the court. Most courts do not require a court appearance by either party to finalize the divorce.

Attorneys and spouses must commit to amicably working together toward a settlement. You and your spouse must agree to full and complete disclosure of all relevant financial information. There is no formal discovery process in a collaborative case:

“Except as provided by law other than this chapter, during the collaborative family law process, on the request of another party, a party shall make timely, full, candid, and informal disclosure of information related to the collaborative matter without formal discovery. A party shall update promptly any previously disclosed information that has materially changed.” Tex. Fam. Code § 15.109

What Happens if We Can’t Work it Out?

If the process breaks down, you and your spouse must start from scratch. Your collaborative divorce attorneys will also be required to withdraw from the case. New litigation counsel is required if the process is terminated.

There is also a 30-day cooling-off period during which neither party can set a hearing with the court immediately (except in urgent circumstances such as child kidnapping or imminent harm to the community estate).

Interest-Based Negotiation

This simply means that settlement talks are driven by the interests of the spouses and their children. A collaborative team will assist you and your spouse in identifying your interests and then look for creative ways to satisfy those interests, as opposed to engaging in traditional positional bargaining. Source: COLLABORATIVE FAMILY LAW: A MEANS TO A LESS DESTRUCTIVE DIVORCE, 70 Tex. B. J. 196, 196

A collaborative attorney’s job is to make sure you and your spouse are aware of all your options, know the consequences associated with each option, and make fully informed decisions. This is in stark opposition to traditional, litigated divorces in which the parties often feel that they have little input in the process. source: COLLABORATIVE FAMILY LAW: A MEANS TO A LESS DESTRUCTIVE DIVORCE, 70 Tex. B. J. 196, 197

Rules and Procedures for Texas Collaborative Divorce

Each spouse must sign a participation agreement before entering the collaborative divorce process. A collaborative family law participation agreement must be:

• in writing
• signed by both spouses
• state the spouses’ intent to use the collaborative law process
• describe the nature and scope of the divorce
• identify the collaborative lawyer who represents each spouse
• include a statement from each collaborative lawyer confirming the lawyer’s representation

Tex. Fam. Code § 15.101

What Should a Participation Agreement Include?

The participation agreement must include provisions for suspending court intervention during the collaborative divorce process and, unless otherwise agreed to in writing, jointly engage any professionals, experts, or advisors in a neutral capacity. Tex. Fam. Code § 15.101

After Signing the Participation Agreement

Your attorneys will file a “notice of collaborative law procedures” with the court. This lets the court know that your case is being resolved using the collaborative law process.

The notice functions as a stay of the proceeding in the court. This means the court may not set the case for trial or dismissal until the second anniversary of the date the case was filed with the court. This effectively gives you, your spouse, and your collaborative law team as much time as you need in that two-year period to work on the case without any pressure or interference by the court.

Status updates are provided to the court at the six-, nine-, and 12-month dates.

The Negotiations

You and your soon-to-be former spouse will meet periodically with your attorneys and the neutrals assigned to your case. These sessions are called joint sessions. You will also have off-line meetings with just the neutrals.

Typically, each case has a Neutral Financial Professional who gathers the information about the community estate and a Neutral Communication Facilitator who assists with communication during the process and helps to develop a parenting plan for those parties with children.

Neutral Experts in Collaborative Divorce

In the collaborative divorce process, all experts are jointly retained by both spouses. This is primarily to reduce cost and also to avoid the appearance of bias toward either party. The experts may only participate in the process as neutrals; they cannot work with either party in future litigation.

Additionally, if the collaborative process does not resolve your divorce, the experts cannot be called to testify in court. His or her opinions cannot be utilized by another expert unless the parties agree in writing. In re Marriage of Schuster, 2018 Tex. Dist. LEXIS 4394, *46

Modifications

Once a collaborative law settlement agreement is signed, a court may not modify that agreement. In re S.C.S., No. 13-21-00386-CV, 2022 Tex. App. LEXIS 6493, at *1 (Tex. App. Aug. 30, 2022)

When Collaborative Divorce May Not be Suitable

Emergency Orders

During a collaborative family law process, a court may issue an emergency order to protect the health, safety, welfare, or interest of a party or a family. If the emergency order is granted without the agreement of all parties, the order terminates the collaborative divorce process. Tex. Fam. Code § 15.104

Domestic Violence

If your lawyer reasonably suspects there is a history of family violence on either side, the lawyer may not begin or continue the collaborative process unless:

1. you or your spouse request beginning or continuing a process; and
2. the lawyer determines what, if any, reasonable steps can be taken to address the concerns regarding family violence.
   Tex. Fam. Code § 15.112

Ask an Attorney if Collaborative Divorce is Right For You

Divorce doesn’t have to be messy. The collaborative divorce process helps divorcing couples stay focused on the future rather than stuck in the past. Call 214-884-3775 to begin your case assessment.