Couples facing divorce may want to explore a relatively new option for legally ending marriage in Texas called collaborative divorce. This approach emphasizes cooperation over confrontation, and problem-solving over grievance-airing. It was developed as a way to minimize conflicts and the emotional anguish of a traditional divorce process, especially when children are involved.
In a collaborative divorce, each spouse is assisted by a lawyer so they have the benefit of individual counsel. The divorcing parties and attorneys agree to cooperate fully in providing full disclosure of all financial information, and to produce whatever documentation is requested by the other party. The attorneys commit in writing to act honestly and professionally, and to treat the other attorney and client with respect and dignity.
All negotiations take place during four-way meetings with both parties and their lawyers, and sometimes other professional experts. Attorneys draft legal documents, guide settlement meetings and strategize with their clients. Frequently, a divorce financial analyst like myself, is part of the team and becomes a neutral financial professional in order to help work out the nitty-gritty of the monetary settlement. The neutral financial professional is crucial when the parties have substantial assets, providing an unbiased view of the financials. The financial professional also provides the team with tools to clarify the couple’s financial situation — creating spreadsheets, charts and graphs that are often very useful in illustrating the big picture in black-and-white.
In practice, the concept of the collaborative law used in divorce is the opposite of almost everything typical divorce attorneys have been trained to do. It requires a definite shift in an attorney’s mindset and methods to successfully handle a case collaboratively. The differences between collaborative divorce and a typical divorce can be profound.
In the collaborative process, while couples may not always agree on everything, they are encouraged to try to understand each other’s needs, interests and point of view. This is designed to enhance trust, reduce hostility and facilitate a settlement that works for everyone.
The collaborative divorce process is designed to provide more privacy, client control, and transparency; this process also strives to minimize post-divorce conflicts and aids in preserving family relationships, protecting the children, and allowing creative settlement solutions.
In order for this approach to be meaningful, effective and fair, both spouses should have relatively equal “bargaining power,” and should not be overly emotional, angry, fearful or intimidated by the other. This option also may not be appropriate for the mentally or emotionally incapacitated, or anyone struggling with substance abuse or domestic violence. In addition, full disclosure is required and both individuals must be fully informed of all relevant issues – i.e. legal rights, assets and liabilities, etc.
One significant drawback to the collaborative approach occurs if the process breaks down and the couple cannot agree on a settlement. Both collaborative attorneys who worked on the case must withdraw and each spouse must hire a new attorney — essentially going back to square one. This is likely to prolong the divorce process and increase costs.