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Texas Collaborative Law Blog

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Texas Collaborative Law Blog

Collaborative Law is a dispute resolution process that encourages and enables the parties to a divorce or family law issue to settle out of court in a respectful, private and mutually agreeable manner. The parties each have their own attorneys, but they agree at the outset to not go to court. We usually also utilize a neutral mental health professional, as a communication facilitator, and a neutral financial professional to help the parties.  If the process breaks down, the attorneys and other professionals must withdraw and the parties hire new attorneys to go to court.  That withdrawal provision is one of the incentives that make this process work.

This blog is set up to provide information about the Texas approach to Collaborative Law.

What to Expect: How Easy is Collaborative Law?

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realistic-expectationsSome people think that if you choose to work out your divorce issues and you agree to not go to court, you have elected to use a nice, simple, easy process.  While the process is generally nicer than litigation and is intended to at preserve family relationships (assuming you want or need to), it is not necessarily simple or easy.If you are considering using Collaborative Law, we want you to have realistic expectations.  The preparation and meetings are often difficult and time consuming.  Here are some things to keep in mind if you begin the Collaborative process.1.  There will be a number of meetings.  People often try to cut back on the meetings, but I can assure you that the attorneys and other professionals do not set up unnecessary meetings.  Issues tend to be handled better if we work on them in joint meetings rather than by email or phone calls between attorneys.  We always try to limit the meetings, but please work with the professionals if we say we need another meeting.

2.  Express what you want. Don’t expect your attorney to speak for you.  This is not the process where you attorney writes pleadings and makes arguments for you.  We want you to speak up for yourself.  Your attorney will help you prepare.3.  Each of you must listen to the other side.  In court, it often feels like whoever speaks first or loudest is the one the judge will pay attention to.  In Collaborative, we want both of you to speak and be heard by the other.

4.  Be patient.  This may take a while.  Even though going to court would probably take 9 to 18 months to reach resolution, people in Collaborative sometimes have unrealistic expectations that the process can be resolved in 2 to 3 meeting over a couple of months.  Some minimalist cases can be done that quickly, but most will take 3 or 4 months and some will take more.

5.  You must be an active participant.  You have to gather information, plan, be creative and suggest solutions.  There will be meetings to attend and you may have to study different options.  There will be times to meet with your attorney and times to meet with the other professionals.  You must speak your mind and tell us what you like or don’t like.

6.  Be willing to grow.  You may need to expand your horizons.  Don’t settle for the what the law will give you.  Ask for more and ask for different solutions.  We are talking about a major life event, so look into the future.

7.  Expect some discomfort.  You will hear some things you don’t like.  You will be confronted with difficult issues and will have to compromise where you may not want to.  Instead of giving up or giving in, you can learn to seek other alternatives and find new solutions that can work for everyone.  It’s just not the situation where you choose from a menu of possibilities.  Sometimes you will need to create a new menu and that may be hard.  But, it will be worthwhile.

Having realistic expectations will ensure that the Collaborative process is successful and less stressful for you.  Good luck!

 

Discussing Why You Want to Use Collaborative Law

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There’s an important discussion that needs to take place, but which is often overlooked, at the start of a Collaborative Law case.  People choose to use the process for many different reasons, sometimes being influenced by more than one reason.Here are some of the reasons why people choose to use Collaborative.  They are looking for:

  • A civil, less stressful, resolution of difficult issues.  Instead of “warfare” between spouses, they can choose to negotiate as adults to find acceptable ways to meet the needs of each party.
  • An inexpensive process to resolve disputes.
  • A fast process to resolve disputes.
  • A fair process.
  • A process where the parties can control the expenses.
  • Privacy.
  • A process where the parties make the decisions and control the outcome.
  •  A process where the parties control the timing, instead of leaving it to a court or arbitrary rules.
  • A process  that preserves important family relationships.

These are all reasons that different people have expressed in different cases.  They are all legitimate values, but you should know that:

  • Collaborative Law is not “cheap”.  Cheap is a relative term.  In general, Collaborative Law can be less expensive than litigation because we don’t do formal discovery or depositions, we don’t use competing experts and we don’t have numerous court appearances.  That’s money that’s saved.  On the other hand, there are two attorneys, usually a neutral mental health professional and a neutral financial professional and multiple meetings. We do gain some efficiency by having the other two professionals do a lot of the work on parenting issues and gathering financial information and creating budgets without having the attorneys sit in on the preliminary work.  My opinion is that, on balance, Collaborative can be cheaper than litigation, especially compared to hotly contested cases.
  • Collaborative Law is not inherently “fast”, unless both parties are in agreement as to how fast they want to go.  The general rule is that the process can move along only as fast as the slower party is willing to go. One party cannot rush the other party in Collaborative.

What to Do
At the start of your Collaborative case, please take some time out to discuss with your Collaborative lawyer why you want to use the process.  Explain your expectations.  If you have unrealistic expectations, it is better to discover that early on so adjustments can be made or a new course chosen.  The attorneys and other professionals can adjust their approaches if they know from the beginning what is really important to you about the process.

The result will be greater comfort for you and a greater chance for a successful outcome!

 

Is Collaborative Law Faster than Litigation?

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Is Collaborative Law faster?  Usually, BUT it’s not necessarily “fast”.The Collaborative process is deliberate.  We follow a Roadmap that is logical and efficient.

  • At our first joint meeting, we usually explain the process, make sure everyone understands it and then get a firm commitment from everyone to follow the process.  We also discuss the goals and expectations of each party.
  • The next step is gathering information.  Financial information is gathered by the neutral financial professional (FP).  Information about children’s issues, if any, is gathered by the neutral mental health professional (MHP).
  • After we have the information to work with, we develop options to consider.
  • The final step is to discuss and negotiate to an agreement.

Other considerations.

  • We always have to remember that we can’t go faster than the slower party is willing to go.  There are different levels of emotional readiness for divorce.  It is fairly common for one party to have been thinking and planning for the divorce for a long time.  That party is over the marriage and often is very anxious to get the divorce over with.  On the other hand, the other party may be taken by surprise and may need quite a while to adjust if the first spouse kept everything a secret.
  • Sometimes, some preparation is needed to transition out of a marriage.  In most Collaborative cases, the parties prepare budgets to help them make financial decisions.  That takes some time.  A house may need to be sold, refinanced or transferred to one party. It may take a while to divide certain assets.  With children, there may need to be planning about how and when to tell them or how to manage the sharing of the parenting post-divorce.  One party may need to find a job and/or get spousal support for some period of time.
  • There may be other reasons to delay final action on the divorce, including health, family obligations, job obligations, housing issues, etc.  Usually things can be wrapped up fairly quickly, but it could take a few months.  For someone very anxious to get the divorce over with, that can seem like a lifetime.

Comparison to litigation.  In litigation, there are numerous things that can delay progress.  Overall, the parties are looking at 9 months or more to reach a final trial in a contested case.  This is because the parties typically have to deal with:

  • Temporary hearings
  • Other hearings
  • Discovery
  • Preparation of an Inventory and Appraisement
  • Scheduling order from the Court
  • Mediation deadline just before trial
  • Trial date 9 months or more away.

What sometimes happens is one party has been thinking about the divorce for a long time,  without telling the other party.  When the divorce gets started, the first party is immediately ready for the process to be over because he/she has thought it over and planned everything for months.  The other party is surprised and unprepared and needs time to collect his/her thoughts and then begin making plans.

In a Collaborative case, the party who plans ahead feels like the process is moving very slowly.  The other party feels the opposite.  Gradually, the second party gets up to speed, but it may take a while.  

Even if it does seem slow at first, the Collaborative process will almost always move much faster than a litigated divorce.
 

Is Collaborative Law Cheaper than Litigation?

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Is Collaborative Law cheaper?  Probably.Is Collaborative Law cheap?  Not necessarily, but it’s all relative.The Players.  In Texas, each party hires their own attorney.  Then, the attorneys select a neutral mental health professional (MHP) and a neutral financial professional (FP) to work with both parties.  That sounds like a lot of expense, but keep in mind that the MHP and FP do a lot of independent work in the case at a cost of less than half the charge of just one of the attorneys.The Process.  We will have a series of joint meetings to  discuss and review facts and issues in the case. (We follow a Roadmap that is a step by step process of setting goals, gathering information, generating options and coming to agreements.)  At the joint meetings, we usually have both attorneys and both other professionals, unless we are just talking about non-financial children’s issues.  Then we would have the attorneys and MHP.

Efficiencies. The Collaborative process operates very efficiently regarding creating a parenting plan and gathering and organizing financial records.  We have “offline” meetings with just the MHP and the parties on parenting issues and just the FP and the parties to do the preliminary financial work.

In a litigated case, the attorney typically would be meeting with their client to gather information and formulate a plan on parenting issues.  The MHP is much less expensive and probably more qualified to help the parties than either attorney.

Similarly on the financial issues, in litigation, the attorney would be telling the client what information is needed, then would review whatever was produced and would prepare an Inventory and Appraisement. The FP is much better qualified and less expensive in gathering, organizing and evaluating the finances.  In addition, the FP helps both parties plan and prepare budgets for post-divorce, which is rarely done in litigation.

Comparison in litigation

Hearings.  Especially in hotly contested cases, there are multiple hearings at the courthouse.  That means time off work, preparation time and attorney’s fees.  We usually average about three hours at court every time a case has a hearing because we end up waiting around to be heard and then there’s the time in the hearing.  And there are the inevitable postponements and resets.

Discovery. In litigation, we usually do discovery, which is a formal process involving written requests for information and as a result, the gathering of voluminous, often irrelevant, documents and photos that have to be copied or put on a disk for the other side.  Parties usually spend thousands of dollars on discovery alone.  Then there are often fights, and more hearings, about whether all the documents requested were produced.

Inventory and Appraisement.  This is like an expanded version of the joint spreadsheet used in Collaborative cases, but with a lot more detail, and each side prepares their own.  That means more than twice the cost.

Depositions.  These are a means of discovery where a witness is under oath and is asked questions by one or both attorneys.  There can be a number of these.  Each client will pay for the attorney’s fees and some court reporter cost.

Mediation.  Most cases will settle in mediation.  The problem is that mediation usually takes place after many months, often just before trial.  You will pay the mediator as well as your own attorney.

Trial.  If mediation fails, you will go to trial. In Tarrant County, it usually takes 9 months to a year or more to get to trial.  Trials are also very expensive.

Paperwork. In addition to theses steps, there will be a lot of paperwork, from letters back and forth to pleadings and orders and discovery documents. It all costs money.

Bottom Line:  While Collaborative cases may seem expensive if viewed with no context or comparison to litigation, they actually are usually a lot cheaper than contested litigated cases.  In the Collaborative process, there are no hearings, discovery, Inventory, depositions or trial.  There’s usually no mediation and there’s a lot less paperwork.

If you want to compare processes, look at all the costs!

 

Is Collaborative Law a Good Fit for You?

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In a recent blog post, Adryenn Cantor, a San Diego, CA attorney included an excellent list of five questions for people to ask themselves to determine if they are a good candidate for using Collaborative Law in a divorce case.  Here are her questions:

  1. “Do you want to end your marriage with respect and integrity? 

  2. Is taking a rational and fair approach to dividing your assets more important than seeing yourself as a winner and your spouse as the loser in this process?

  3. Are your children the most important aspect in this process?

  4.  Is saving money, which could go to you or your children more important than spending it on protracted litigation?

  5.  Do you want to model for yourself, your spouse and your children how mature adults handle significant challenges?”

    If you answer “Yes” to one or more of the questions, you should seriously consider using Collaborative Law.     You can find a lot of information on this blog about how it works.  You can also search other web sites for information.  Finally, call a local trained Collaborative lawyer and meet face-to-face to discuss the process and whether it would be helpful and appropriate for you.

    Warning:  Some lawyers advertise that they do Collaborative Law when they really don’t.  If you meet with an attorney who tells you Collaborative won’t work for you, do yourself a favor and get a second opinion from another Collaborative lawyer.  You may have run into one of the “bait and switch” non-Collaborative lawyers.