Saturday, October 15, 2016

Is Collaborative Law Safe Without the Injunctions?

In almost every divorce, Collaborative or litigated, there is mistrust between the parties.  Often, one or both parties feel vulnerable and at risk of being taken advantage of. Fortunately, Collaborative Divorces have safety features to protect the participants.

Here's how some parts of the Collaborative process provide extra protection.

"Code of Conduct"
In divorce litigation, one of the first steps normally taken is to get a temporary restraining order (TRO) issued and schedule a hearing for a temporary injunction that would continue in place until the final divorce is granted.  In some counties in Texas, there are "standing orders" that are automatic mutual temporary injunctions that apply immediately to both parties when the divorce is filed.

Regardless of which way the orders come into effect, there are restraints on the parties financially and socially that go into effect very quickly in most cases.  That is not necessarily the case with Collaborative cases, which concerns some people.

To address those concerns, in Texas, the Collaborative community has created a standard Participation Agreement that is signed in every case which has similar language limiting what the parties can do after they sign up to use Collaborative Law for their divorce. In Collaborative Divorces, the "Code of Conduct" attached to the Participation Agreement provides protection and rules to manage financial and other matters while the divorce is pending, and it becomes effective at the very start of the case when everyone signs the Participation Agreement.

Extra Set of Eyes
In most Collaborative Divorces, a neutral Financial Professional (FP) works with the parties to gather, organize and interpret the financial data for the married couple.  The FP is trained in divorce law and financial analysis and planning.  A major job of the FP is to help the parties gather the relevant financial records and organize them into a spreadsheet that is used by everyone.  The FP normally looks at tax returns and financial statements to help determine what the assets and liabilities are and what their values are. 

In a litigated divorce, there is no neutral financial expert playing that role. The Court relies on the parties to produce the financial data, which sometimes results in incomplete or misleading information. 

In Collaborative cases, the FP is an extra set of expert eyes for both parties helping to gather and check the information provided.  That saves a lot of money by focusing on the most relevant information and avoiding duplication and overlap. If any additional information is needed, the FP will request it immediately.  If there are any questions about the financial information, the FP takes the lead in getting clarification or additional information.

Obligation to Correct Mistakes
In litigated divorces, if a party makes a mistake, there's often no obligation for the other party to bring it to their attention or to correct it. 

In sharp contrast, in Collaborative Divorces, if a party or professional discovers a mistake, there is an obligation to bring it to everyone's attention and correct it. That makes Collaborative a much safer process for the parties because they are less likely to be disadvantaged by a mistake.

Unique Provisions Improve Safety for the Parties
Because of these provisions, the Collaborative process has proven to be a safe alternative to litigation.  A temporary injunction is no magic shield that can prevent all misbehavior.  With the Collaborative Divorce provisions, there are more weapons to fight misbehavior and dishonesty, so the process is certainly worth serious consideration.

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