Collaborative Divorce in Texas

By Patricia Barrett CFP CDFA and Leonard Roth, Attorney

The adversarial or litigation model of handling contested family law cases has remained relatively unchanged over the past century and a half. Under the litigation model, an emotionally raw client, Sally, arrives at the attorney’s office to begin the divorce process. The lawyer explains the options available to her under the existing law. Sally retains the attorney, becoming the “Petitioner”, and leaves the attorney to fully handle the matter. Sally feels lost. A “petition” is prepared, filed and served on the “Respondent”, Joe, usually at his place of employment. This is the first time Joe’s had a “restraining order” issued against him. Now, Joe seeks legal counsel to thwart this terrible affront. So begins Divorce Armageddon.

Though Sally and Joe wished their case to be low profile, witnesses are needed to reinforce their arguments. Retainers are soon exhausted and additional monies are due. The attorneys schedule hearings to compel enforcement for violations of discovery or temporary orders. The relationship between Sally and Joe reaches an abysmal level. The children are showing adverse effects. The irrevocable machinery of litigation rolls on unabated. The clients’ frustration with the process is palpable. If an impasse is reached, the case goes to trial at some later date. So, Sally and Joe are emotionally and financially battered and bewildered by the litigation process.

Due to frustration with this system, a family lawyer in Minnesota decided to change the process on his own. He coined the term “Collaborative Law”. The methods struck a resonant chord with many Family Law practitioners as an epiphany. Now Collaborative Law has made its way to Dallas in a big way and is trickling slowly south in the new millennium. Texas is one of the states that has passed laws concerning Collaborative Law. The law requires the divorcing parties and their collaboratively trained attorneys sign a “participation agreement” agreeing to:

full exchange of pertinent information between the parties and their attorneys,
exclude court intervention in the divorce while using collaborative law,
hire joint experts, such as Financial Planners trained in divorce or Mental Health professionals,
withdrawal of both attorneys involved in the collaborative law procedure if the collaborative law procedure does not result in settlement;
a good faith effort to collaboratively settle the matter.

The court still has to approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to complete the process.

The Collaborative Law agreement is the fundamental, written commitment between the parties. It is the roadmap of the Collaborative Law process to be followed to a fair and equitable resolution of the parties’ own making. At the first joint session, the Participation Agreement is read, word for word, out loud, by the attorneys and clients. Questions are asked and answered. A full understanding by all participants to honor the Agreement is agreed to before signing. The state-wide Collaborative Law organization, the Collaborative Law Institute of Texas, has created, in-depth Protocols for the Collaborative Law practice that guide the process in Texas. In most cases, the lengthy Protocols are given to the participants and explained.

The participants can, no later than 30 days before trial, notify the court of their desire to handle the case collaboratively. Presto! The court must take the case off the docket, must NOT impose discovery deadlines, must NOT require compliance with scheduling orders15 and must NOT dismiss the case16. The legislature wanted to give any Collaborative Law case a realistic chance of success, without interference.

If the process fails for whatever reason or is not successful within 2 years, the court is allowed to set a trial on the regular docket or dismiss the suit.

Back to main topic: Collaborative Divorce
The role of a financial professional in collaborative divorce
What is Collaborative Law?

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