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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.

The Cost of a Collaborative Case: Is It Cheap? Part 2

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focus on future
There’s an old joke about divorce that sometimes goes like this:Q:  Was your divorce cheap?
A:  No, but it was worth it!That joke could now apply to Collaborative divorces.  They are not cheap, but, if people must go through a divorce, this process is a much better way to do it.  At the same time, there are some ways to save some money.  Generally, the parties are better behaved and managed and cases are better resolved.

1.     The process allows the parties and attorneys to avoid expensive activities.  In difficult litigated cases, a lot of actions are instigated to wear down the other side.  There are often multiple hearings for temporary orders, clarification orders, modifications, enforcement and other reasons.  It becomes a war of attrition as one side beats up on the other, all the while costing both parties much more money.  Another means of that is using demanding or threatening letters between the attorneys.

Since Collaborative Law doesn’t allow the parties to go to court, that avenue is eliminated.  In addition, there is a lot more direct communication and dealing with the issues in Collaborative cases, instead of posturing.  Plus, the other professionals are closely involved and helping.  For example, if there are visitation problems, the mental health professional will meet with the parties, if needed, to help them resolve the issues.  They can also be addressed directly in joint meetings and there is a great deal more direct communication, even between meetings, among the attorneys and other professionals.

2.     There’s better decision-making in Collaborative cases. There are several reasons why the Collaborative process is generally better than litigation.

  • The parties participate in all decisions.  In litigation, often the attorneys tend to make many of the decisions, standard guidelines are used or the issue is turned over to a judge to decide.  In Collaborative cases, the parties participate in discussions and no agreement is made unless everyone agrees.
  • When needed, neutral experts are readily brought in and the mental health professional and financial professional are normally always involved, so the parties can easily turn to experts in Collaborative cases.
  • There is a focus on the future, instead of assigning blame for past problems.  Looking ahead and not looking back saves time and avoids unproductive arguing over fault. It also allows the parties to move ahead without further damage to their relationship.

3.     Finally, there’s a greater commitment to the terms of an agreement than there is to the terms of an order imposed by an outsider, such as a judge.  There’s more buy-in when the parties participated in creating a plan, compromised with each other and committed to the final terms.  Even though parties should follow an order from a judge, they are going to feel better and usually be more willing to follow their own agreement which is probably slightly (but importantly) different from a judge’s order.  That usually means there’s more compliance and less fighting post divorce!

 As the old joke suggests, divorce is rarely cheap, but if it’s done right, it can be worth it.  If you are facing this difficult time, you should look into using the Collaborative Law process.

The Cost of a Collaborative Case: Is It Cheap? Part I

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Best
Some people become interested in Collaborative Law because they are looking for a cheap way to get a divorce.  They assume one lawyer can handle the process and that there will be no fighting as they come to agreements.  Unfortunately, Collaborative Law doesn’t work that. There are always two lawyers and the parties often disagree on matters, but we keep the parties focused on the issues and are usually able to come to acceptable agreements even on difficult issues. Fortunately, Collaborative Law can still be a very cost-effective way to handle divorce and other family law matters.

Most of the time, when Collaborative Law is used, the parties can save money in various ways, including the following:

1.     The attorneys don’t use unproductive and wasteful discovery methods.  In litigation, attorneys almost automatically use fairly standard, broad discovery requests.  In Texas, we typically send out 25 written questions (Interrogatories) to be answered, 20 to 60 or more specific Requests for Production of documents and records and a standard Request for Disclosure of basic information, and then we do Depositions. Attorneys throw out a broad net to capture as much information as possible and then spend time reviewing the results and piecing the facts together.       In contrast, in a Collaborative case, we usually have  a neutral Financial Professional (FP) and a neutral Mental Health Professional (MHP) gathering specific information about the finances and the children’s issues, respectively.   We don’t use written discovery or do depositions.  The parties are given specific lists of documents to provide that deal with the relevant issues specific to their case. The FP and MHP direct the gathering of information and that saves money for the parties because the FP and MHP charge less per hour than the attorneys do, who do the work in litigated cases. The FP puts together a spreadsheet that captures the relevant financial information.

2.     For property valuations, we normally use one neutral expert in Collaborative cases.  In litigation, it is common for each party to have their own expert for appraisals.  In addition to paying for two experts, the parties often pay for depositions and court testimony of the experts, costs that are avoided in Collaborative Law cases.

3.     In Collaborative cases, we don’t have expensive court hearings.  In contested  litigated cases, there are often multiple hearings.  In addition to having to go to court several times, the parties face waits and delays whenever they go.  Unfortunately, the courts are overcrowded and overbooked.  That explains why it often takes a 3-hour trip to the courthouse for a simple hearing — a lot of the time is wasted in waiting.In Collaborative Law cases, we don’t go to court, except for a prove-up at the end.  Instead we have a series of meetings, usually 1 1/2 to 2 hours each, to work on a pre-set agenda of topics.  When we get together, we are working.  Also, much of the preliminary work is done in smaller chunks of time with individual professionals.

Conclusion
When people divorce, there are usually complicated, very important issues at stake.  There are no easy solutions for some problems, which means the parties may struggle as they work through them.  With the Financial Professional and Mental Health Professional helping the attorneys, the parties can normally explore the issues and reach acceptable solutions in a safe environment.

While hard issues usually take a great deal of effort and compromise, Collaborative Law gives the parties the opportunity to be cost-effective, even if the process is not “cheap” or easy.



We Disagree Too Much to do Collaborative!

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Fort Worth Collaborative lawyer
I recently heard this as a reason an attorney gave for not using Collaborative Law for a divorce.  Obviously the attorney was not really committed to using the Collaborative process to resolve disputes in divorces and other cases and I have to respectfully disagree.

1.  Litigation won’t make the disagreements go away.  They just won’t be resolved as well as they could have been in Collaborative. There will likely be more conflict.

  • Without lawyers trained in problem-solving through Collaboration, the parties will probably have attorneys who go into the traditional steps of conflict-enhancing litigation.  There will probably be much less cooperation between the attorneys as compared to Collaborative attorneys.
  •  In addition, litigation doesn’t provide for a therapist or a neutral financial advisor to help the parties create solutions and minimize conflict.
  • When the parties can’t reach agreements, the issues will probably ultimately be decided, at least in part, by standard guidelines and the judge’s own biases.

2.  There’s really not “too many disagreements” to use Collaborative.  There are simply better tools to use than litigation provides to handle all the problems. As long as the parties are open, honest and committed to reaching an agreement, Collaborative can be effective.

3.  Every family law case has a lot of disagreements.  We are talking about dispute resolution processes.  There’s no reason to limit it to the easiest cases.  The process is not easy.  It requires patience and dedication, but it is a flexible framework that can handle very difficult and unusual cases.  I have seen the Collaborative Law process successfully resolve the following difficult issues:

  • Adultery
  • Job loss
  • Alcohol abuse
  • Mental disorders
  • Conflicts over parenting styles
  • Alienation allegations
  • Custody fights
  • Long-term illnesses
  • Relocation

If an attorney or anyone else ever tells you that there are “too many disagreements” to use Collaborative Law, you need to get a second opinion from an experienced Collaborative lawyer.  Undoubtedly, the Collaborative lawyer will disagree with that assessment!

Why Do a Collaborative Divorce? Types of Cases

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Fort Worth Collaborative Lawyer
There are many different reasons why people may choose to use the Collaborative process for their divorce.  Aside from the advantages of the process, there are certain types of issues that could really benefit from the flexibility and privacy afforded by Collaborative law.  Here are some examples.

  • A child with special needs.  Courts usually try to do a little extra, but you are still generally turning over the decision-making to a judge who will try to make an order that is a slight variation from the normal, standard provisions.  In Collaborative, we can bring in a neutral expert to the process.  We would also have the mental health professional who can work with the neutral expert to help the parties come up with an appropriate order.
  • Parents with issues.  Unfortunately, the adults sometimes have problems with alcohol, drugs or anger, among other things.  Various addictions may require special help that might not be well dealt with in the court system, and in Collaborative cases, we can work at our own pace, in privacy, until the issues are under control. Again, we can bring in extra help, if needed.
  • Stay-at-home parents.  If one parent has been off the career track for a number of years, it may be very difficult and time consuming to find a new career and job. There needs to be some way to provide extra help for that transition.
  • Professionals.  Many doctors, lawyers, engineers, CPAs and others don’t want their personal issues laid out in public documents.  Public figures, including politicians, are in the same situation. Collaborative divorce gives them the protection of a private process that works outside the court system until the divorce is final.
  • Too busy for court?  Some people have really busy or inconvenient schedules.  While all of us would like to think we are indispensable, there are some people whose absence at work really creates problems.  They need the ability to meet at non-traditional times (not at court at 9 a.m. or 1:30 p.m., for example).  Collaborative meetings can be convened at any time on any day when all the parties can get there.
  • Convenient meeting place.  The courthouse may not be the most convenient place to meet.  In Collaborative cases, we usually meet at the attorneys’ offices, but I have had several cases where we met at the mental health professional’s or the financial professional’s office.
  • Need non-standard visitation or child support.  It is much easier to get creative with visitation or child support in Collaborative cases.  In litigation, the guidelines are almost always used.  In Collaboration, the guidelines are just an option and we usually consider several options.

If you are facing a divorce and any of the above situations apply to you, please look further into using Collaborative Law.  It will probably be your best avenue for meeting your needs.

What’s the Role of the MHP in a Collaborative Divorce?

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Fort Worth Collaborative Lawyer
Most people think of therapists as “shrinks”.  They do psychotherapy or psychological evaluations.In Texas Collaborative Law cases, we generally use a neutral therapist or mental health professional (MHP) to work with both parties.  The MHP does not do therapy for either party.  Instead, we rely on him/her to help in many other ways.Here is a list of some of the ways MHPs help in Collaborative cases.

1.  Manage meetings as a neutral.

2.  Help the parties stay on their best behavior.

3.  Help the parties learn how to communicate better with each other.

4.  Enhance the listening skills for everyone.

5.  Make sure everyone is heard at joint meetings.

6.  Help the attorneys realize when a party is having a difficult session.

7.  Help the parties create a parenting plan.

8.  Add another perspective for the attorneys as the case progresses.

9.  Help the parties work on and refine their goals for the process.

10. Answer parenting questions and help parents decide how to talk with their children.

As you can see, the MHP has a major role in Collaborative cases.  As an attorney who worked in Collaborative Law before therapists were brought into the process, I would emphatically state that MHPs are essential to the success of the process.  We can get better results, with less stress and in a shorter time, when we involve a therapist from the beginning.  I always insist on that!