Couples facing divorce may want to explore a relatively new option for legally ending marriage in Texas called Collaborative Divorce. This very distinct model emphasizes cooperation over confrontation, and problem-solving over grievance-airing. It was developed as a way to reduce conflict and the emotional anguish of a traditional divorce process, especially when children are involved.
In the collaborative divorce approach, each spouse is assisted by a lawyer so they have the benefit of individual legal 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. The couple agrees to work toward a settlement without litigation and signs an agreement to this effect.
All negotiations take place during four-way meetings with both parties and their lawyers, and sometimes other professional experts. Attorneys typically guide settlement meetings and strategize with their clients. Everything discussed in the meetings is confidential and can never be brought up in court. Either party may choose to end the process at any time.
Frequently, a divorce financial analyst like myself, becomes a neutral member of the team in order to help work out the nitty-gritty of the monetary settlement. Oftimes, the financial expert gathers financial documents required by the team. 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. This can include spreadsheets, charts and graphs which are often useful in illustrating the big picture, and both the short- and long-term outcome of various settlement scenarios in black-and-white for each spouse.
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 consider and 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 without taking their case before a judge.
Collaborative divorce is designed to give divorcing parties more privacy, control and transparency; this process also strives to minimize post-divorce resentment and conflicts, and can aid in preserving family relationships, protecting the children, and allowing for creative settlement solutions.
In order for this approach to be meaningful, effective and fair, both spouses should have relatively equal “bargaining power” and knowledge of all relevant issues – i.e. legal rights under Texas divorce law, marital assets and liabilities, etc. Each spouse should not be overly emotional, angry, fearful or intimidated by the other.
An element of trust should be present between the divorcing parties. This option may not be appropriate for the mentally or emotionally incapacitated, or anyone struggling with substance abuse or experiencing domestic violence on any level — physically or emotionally.
While this model offers many benefits, it has been my experience that these kinds of divorces can be more costly than others and require longer to complete. Trying to get all parties together for several meetings can be especially difficult these days among busy professionals. And in many cases, these meetings lack finality, which can drag out the process with no settlement in sight. There is also still a steep learning curve for most attorneys who are accustomed to being litigious and may not always act collaboratively.
Additionally, if the process breaks down and the couple cannot ultimately agree on a settlement, both collaborative attorneys who have worked on the case must withdraw. Then, each spouse must hire a new attorney, essentially going back to square one. This is likely to not only be more costly, but will also prolong the divorce process even more.