How to Tell Your Spouse About Collaborative Law

It's relatively easy for a person facing divorce to discover and embrace the Collaborative Law process. If a person is just looking for confrontation, battle or retribution against their spouse, there will be no interest in Collaborative Law. On the other hand, if someone is looking for a less contentious divorce, and especially if maintaining personal relationships is important (because of children, among other reasons), Collaborative Law has a lot of attraction.

If you and your spouse have already had a discussion about needing a divorce, the question becomes how to inform/convince your spouse about the advantages of the Collaborative approach. If you haven't notified your spouse of your feelings about the marriage, then you need to do so in an appropriate way. See the posting about how to do that in my other blog, Divorce and Family Law in Tarrant County, Texas.

There are many factors for you to consider when deciding how to approach your spouse. Among them are:

• Your spouse's personality. Does your spouse need to feel in charge? Will your spouse take suggestions well if they come from you?

• Does your spouse trust your judgment? Is there a lot of distrust in the relationship now? You can do more directly, if there is trust. If trust is a problem, you may need less information coming from you.

• What is your spouse's attitude about the divorce? Will he or she want to pursue reconciliation or a punitive approach? Is your spouse angry, resigned, happy or looking forward to a divorce?

• What is the best time to bring up the subject? Are there any family or other significant events coming up that would warrant tabling the discussion until another time? Timing is important. Starting a discussion just before going to bed or as your spouse is rushing off to do something may lead to disaster.

• Where should you discuss it with your spouse? At home? Out at a public place? With a counselor? With friends? With family around?

• Should the information come directly from you or indirectly through friends or family? Sometimes your relationship is so strained that you may get a better reception by having someone else bring it up with your spouse.

Once you answer those questions, here are some ideas on different ways to get information to your spouse:

1. Provide written information. This could be a letter from you or your attorney. It could be a brochure about Collaborative Law or an information packet from your attorney.

2. You could bring up the topic generally, but let your spouse research it. Some people like to research for themselves or research may be the better option if trust is an issue. At the least, you should be able to provide some links and resources to your spouse.

3. You could lay out comprehensive information for your spouse to consider. Some parties want to receive a substantial amount of information and then analyze it for themselves. Others want to get a brief explanation and find out the botttom line on any issue.

4. It's usually a good idea to provide a list of qualified attorneys, unless your spouse would feel pressured. If you suggest attorneys, you should offer at least three names, or a Practice Group listing, so that your spouse will not feel like you are pushing a certain attorney or attorneys. It works well if your spouse is good at researching people on the internet.

5. You could give your spouse a book about Collaborative Law. Janet Brumley has a book about Texas Collaborative Law cases. Ron Ousky has a fairly new book, as do Pauline Tessler and Peggy Thompson. Any of those books could be helpful to someone who wants to learn about how Collaborative cases work.

6. In some cases, it may be better to find a mutually trusted relative or friend to discuss the situation with your spouse.

7. There are, or may be, some newer technologies to use to inform your spouse. Web sites and blogs are now important sources of information--you could suggest some. Some attorneys have CDs with information about Collaborative Law which they are happy to provide to you. Finally, You Tube has some short features on Collaborative Law and will certainly have more in the future.

Conclusion: It is important for you to carefully analyze the situation and your spouse's receptiveness to a discussion about Collaborative Law. A thoughtful and sensitive approach during the sometimes delicate time of initially discussing divorce and how to proceed can pay huge dividends and lead to a more peaceful process for you.

Collaborative Law Approved in Washington State

The Rules of Professional Conduct Committee of the Washington State Bar Association has recently issued an advisory opinion approving the use of Collaborative Law to resolve family law matters. The opinion is based on two requirements.

The first requirement is that the attorney must believe that the client's interests will be well served by utilizing the process. Presumably, the lawyer would not recommend it unless that were the case.

The second requirement is that there must be informed consent by the client. Informed consent, in this situation, means that there has been consideration of the client's objectives, the possible benefits and risks of the process, and the availability of other options. Again, those are normally discussed by the attorney and client before the process is chosen and begun.

This is another example of the increasing approval and spread of Collaborative Law through the United States. Clients should ask their lawyers about the advisability of using Collaborative Law in just about any kind of family law case.

Quick Tips: How to Find a Good Collaborative Attorney

Let's assume that you are facing a divorce or some other family law issue. Let's also assume that you know enough about Collaborative Law to want to use the process to resolve your issue. You certainly want to find a knowledgeable and experienced lawyer who is trained in Collaborative Law. Here are some quick tips to help you find the kind of attorney you want.

1. Ask around. That's always a good way to start. Referrals from family, friends, attorneys or other professionals can lead to an appropriate attorney. Find someone who has worked well with someone in the recent past.

2. Research attorneys on the Internet. Look beyond mere statements that the attorneys utilize Collaborative Law. Look for attorneys who discuss their feelings about Collaborative Law and who demonstrate that they have had extensive training in it. Look at attorneys' web sites and blogs to discover their credentials and attitudes.

3. When you call an attorney's office, ask about the attorney's experience and whether or not he or she has been to one or more two-day trainings in Collaborative Law. For an attorney to work effectively in the Collaborative model, it really is necessary to have had at least one two-day training, and multiple trainings improve the quality of work by the attorney.

4. When you meet with the prospective attorney, you should discuss the attorney's approach to cases generally and determine whether Collaborative is the attorney's preferred approach. Some experienced Collaborative lawyers can also utilize some of the Collaborative Law skills in non-Collaborative cases, and that is worth discussing with the attorney.

5. Ask for help on how to discuss the issue with your spouse. That is difficult to do, but a good Collaborative lawyer should be able to brainstorm with you to come up with some ideas.

Utilizing these quick tips should help you find a qualified Collaborative lawyer to help you resolve you family law issue peacefully and effectively. Good luck!

Floridians Can Collaborate

Collaborative Practice is continuing to gain official acceptance in the U.S. In October 2007, the presiding judge in the Miami-Dade Circuit Court signed an administrative order authorizing the use of Collaborative Law there. That was the culmination of work by many attorneys in that area who put a lot of effort into getting official sanction for the new process for peacefully resolving divorces and other family law issues. At about the same time, the American Bar Association ethics committee issued an opinion validating that it is an ethical way to practice law -- an opinion widely shared throughout the U.S. and in many other countries.

Texas was the first state to get a statute passed specifically authorizing Collaborative Law for use in family law cases. Information about Collaborative Law in Texas can be found at www.collablawtexas.com or at my web site. Slowly, but surely, the process is spreading and more and more people are able to utilize the process to peacefully resolve their disputes.

Fewer, but Friendlier, Divorces

A story in the Kansas City Star on November 21 provided some surprising news about the state of divorce in the U.S. The common perception is that the divorce rate is rising and that fewer than half of marriages survive. That apparently is changing. From 1979 to 2005, the rate of divorce dropped from 22.8 to 16.7 per 1,000 married couples. About 53% of the couples who married from 1975 to 1979 had marriages that lasted at least 25 years, which was an improvement over previous times.

The article pointed out that not only is the divorce rate falling, but fewer people are going to court to resolve their marital issues. All over the country, people are turning to new alternatives to trials. Mediation, which began to become popular here in Texas in the mid- to late-1980s, continues to grow. There are more and more quality mediators available to work in Family Law cases and other matters. In addition, arbitration is becoming a little more common, but it is still not very well known.

One of the best innovations that is making a dent in the trial statistics is Collaborative Law. Across the country, more cases are successfully using Collaborative Law to resolve all kinds of Family Law matters and some other matters, such as probate, employment claims and contract disputes, all without going to court.

Having the choices available makes it much easier to work out solutions without going to trial. While Collaborative Law is often the best alternative, there are situations where it may not work well. In those cases, mediation or arbitration can be extremely helpful. Parties considering divorce should visit with one or more attorneys and find out all their options before they get started. For advice on Collaborative Law, make sure you visit with a lawyer who is trained in Collaborative Law.

What Not to Expect in a Collaborative Case -- Part 2

A week ago, I had a post about false assumptions about how Collaborative Law works. The mistaken ideas should be avoided because they can create enormous problems for Collaborative cases.

Here are a few more expectations to avoid:

1. We will base our agreements on standard guidelines. The lazy, uncreative approach is to open the Family Code and use child support guidelines or standardized possession schedules for the children. Such approaches also are likely to not achieve the parties' goals. Guidelines are really limiting crutches that inhibit creative thinking and problem-solving. It is much better to create a customized plan dealing with each issue.

2. The process is easy. For being a more civilized and respectful process, there can still be a great deal of stress. Although this is a great decision-making model, there are still some very tough decisions to be made. Parties may not need to fear being torn apart in court, but there is a different type of pressure they feel in a Collaborative case. That is a big part of why we generally limit joint meetings to 1 1/2 to 2 hours. The process can be invigorating, and is certainly better than litigation, but the difficulty should not be underestimated.

3. There is no active role for the attorneys. While the attorneys' roles are different than in litigated cases, and there is a great emphasis in the parties speaking up and discussing options and then making decisions, the attorneys are necessary for the process. Attorneys provide legal analysis and framework for the parties. They also provide the paperwork. In addition, experienced Collaborative attorneys will help discussions move smoothly and effectively. Lawyers are also important for discussing issues with the parties and with the other professionals before and after joint meetings. Attorneys are active, but in non-traditional ways that may not be as dramatic as making closing arguments or cross-examining in trial. Nevertheless, Collaborative Law is a process that heavily depends on having trained lawyers involved throughout the process.

4. You will be at the mercy of a controlling (oppressive) (choose your adjective) other party in joint meetings. That concern is one of the primary reasons why neutral mental health professionals have become so valuable in Texas Collaborative Law cases. Their roles include helping both parties to: communicate effectively; avoid creating problems by how they act and what they say; and feel safe in the process. Not only are (both) the attorneys actively watching for problems and intervening as necessary, but they usually meet with their clients before and after joint meetings to review what is being covered. There are actually several layers of protection provided.

5. Your attorney and the other professionals don't need specialized training. Some attorneys will try to handle a Collaborative case without going through at least a two-day basic training course. Some can do an adequate job because they may have a lot of experience as mediators, but there are often problems. Some of the problems relate to differing expectations between the attorneys. The untrained attorney may not be as familiar with the Collaborative problem-solving process and may not realize what he/she needs to do to prepare their party for meetings. Attorneys must undergo an incredible shift in their minds about how to handle a Collaborative case and how to act, so it really does require some specific training. The same is true for the mental health and financial professionals often brought into a case.Fortunately, there are more and more attorneys and other professionals being trained in Collaborative Law.

These tips should respond to the concerns that are sometimes felt by people considering the Collaborative approach. The best way to deal with these and other assumptions is to fully discuss them with your attorney. A well-trained and experienced Collaborative attorney can not only answer your questions, but can discuss your circumstances to clarify how Collaborative Law may work for you.

What Not to Expect in a Collaborative Case -- Part 1

Some people come into the Collaborative process with misconceptions that can hinder the effectiveness of the process and the client's satisfaction. Sometimes parties have had experience in the litigation or mediation approaches and make assumptions that Collaborative may operate in some similar ways. If the mistaken ideas aren't corrected right away, they can lead to serious problems in the case.

This post will discuss five common, but mistaken, expectations. Don't assume any of the following:

1. There will be a quick resolution. There are no shortcuts in Collaborative Law cases. The process is important and should be followed. The goals must be established. Information must be gathered, exchanged and analyzed. Brainstorming for solutions should take place, followed by evaluation of the ideas. Finally, negotiations should lead to agreements. The process works well and each step is necessary, so it will take some time.

2. The process is cheap. While there are some savings because a lot of time for court hearings and formal discovery is avoided, there is still a great deal of work to be done. Generally, complex and difficult cases, which are appropriate for Collaborative Law, will take time and effort to resolve, so there will be major costs for attorneys and other professionals. Again, Collaborative Law generally eliminates the litigation-style dueling experts by having neutral experts working for both parties, so that saves money, but the nature of the cases usually means that the fees will still be expensive.

3. Someone will speak for you. This is not a process where you can just sit back and watch. The parties are the focus of the whole procedure. In contrast to litigation, there is regular, direct discussion between the parties and both attorneys, with the load being carried by the clients. If you are not comfortable in speaking out at a joint meeting, you should discuss the situation with your attorney and the mental health professional (if you have one for the process).

4. You will start making major decisions in the first joint meeting. Some people get in a hurry (see #1 above) and want to start deciding who gets what, who will have primary custody, etc. at the first meeting. Again the process is important and success depends on following the structure set out above for ultimately reaching agreements. It's just not possible to make informed, creative, workable, appropriate decisions on major issues at the first joint meeting.

5. Don't assume any outcomes at the beginning. You'll drive yourself and everyone else crazy if you start off by discussing various outcomes early in the process. Sometimes people begin the process with ideas fixed in their minds, such as that "custody" must be decided a certain way, or they must keep their retirement fund, or child support must be set a certain way, or they will never agree to pay alimony. Taking and holding to those types of positions is contrary to the commitment to consider a variety of options and choose the ones that best help the parties achieve their goals.

If everyone will avoid the false expectations above, the Collaborative Law process will be a lot more effective for all.

The ABA Seal of Approval

Because Collaborative Law is still a fairly new approach in the law, some attorneys haven't really warmed up to the concept of doing divorces and other family law cases a different, non-traditional, way. For various reasons, often because they don't like change, they have opposed the expansion of Collaborative Law, or at least haven't been trained and don't participate in it.

Some attorneys have expressed some vague ideas that there could be some ethical problems with Collaborative Law. In February 2007, a committee of the Colorado Bar Association gave an odd advisory opinion that attorneys there should not participate in Collaborative Law because it created a situation of divided loyalties, which was based on a unique Colorado rule.

That issue should be laid to rest now, however, because the American Bar Association Ethics Committee has issued an opinion supporting Collaborative Law as long as the parties involved are thoroughly aware of how the process works. Educating clients about the process is something that is a part of every Collaborative case. It involves letting the parties know the various options they have in how legal cases can be resolved. Before a Collaborative Law case begins, both parties must understand and commit to the process. If they choose not to take the Collaborative path, they are free to try litigation or another approach.

In Texas, we have the first Collaborative Law statute passed that is now in our Family Code. We are beyond the vague ethical issues because the statute in effect endorses the process. In practice, we have created a Texas model, or approach, for Collaborative Law that involves giving the parties full information about their options and letting them make informed decisions about how they wish to proceed.

At least five other states have ethics opinions supporting Collaborative Law. Colorado has been the only state that has published a critical ethics opinion and the A.B.A. should now have put the issue to rest. It's nice to have some additional confirmation that we are participating in a helpful process for people in a difficult time. For best results, clients should thoroughly discuss all questions and concerns with their attorneys before they start the process.

How to Negotiate Effectively

A recent post on Human Law Mediation had five great tips for more effective negotiating in mediation. While some of these tips could also improve your efforts in the Collaborative Law arena, the list highlights some of the differences in approach between Collaborative Law and mediation.

1. Plan and prepare in the right way. In the Collaborative context, this would include thinking ahead about what your goals are. How do you see yourself coming out of this process? Think about your major long-term goals as well as some important but short-term ones. Use neutral experts to help you decide what you should focus on. Gather and share all the information you have in your possession on any relevant issues. Thinking and planning ahead can help the process move more smoothly and be less stressful.

2. Listen more than you talk. One way to increase your chances of success is to spend more time listening to your spouse (or the other party). In relationships, it is not unusual for partners to develop patterns of communication where one party tends to be more verbal than the other. Even if you are the more silent one, you may be tuning out your partner rather than actively listening. Having a mental health specialist help with the communication issues can result in both parties listening more effectively.

3. Keep emotions in check. Having a mental health professional involved helps keep the emotions in perspective. While emotional reactions need to be dealt with, they do need to be controlled. You can do a much more effective job for yourself if you can avoid being too emotional. It helps to keep in mind what your overriding goals are.

4. Balance aggression against cooperation. In a Collaborative case, aggression is controlled and avoided. Cooperation is the approach that is acceptable. This illustrates a major difference between Collaborative Law and other types of negotiation.

5. (Generally) make the first offer. This tip relates to "positional" bargaining (often used in mediation), rather than "interest-based" bargaining (a fundamental part of Collaborative Law). In positional bargaining, one side stakes out a position and uses that to try to reach an anticipated result. Interest-based negotiations focus on the actual goals and needs expressed by the parties and the parties work to create solutions that help them achieve the goals for both parties. The thought is that someone can limit or expand the range of possible settlements by making the first offer.

Prenuptial Agreements

As couples start discussing marriage, prenuptial agreements are sometimes considered for various reasons. There can be a lot of value to be gained by using a prenuptial agreement, but it can also damage relationships if not approached in a sensitive manner. In the February 5, 2006 issue of the Chicago Tribune, Janet Kidd Stewart wrote about prenuptial agreements being used for older couples who get married.

There are a number of concerns that may surface when older couples are thinking about getting married:

• inheritances
• family peace
• creating joint wealth from shared efforts after marriage
• providing for health care
• estate planning
• debts, including medical bills.

Dealing with those issues can be very complicated because of other family members who may become involved. Older couples often have adult children and grandchildren who may become possessive and territorial about the parent's assets. This can lead to conflict and hard feelings between the children and their parent's new spouse, and sometimes between parent and child. Some adult children sincerely believe they need to protect their parent's property so it can benefit the parent, and perhaps rightfully so. Some older couples end up not marrying because of their (or their children's) fears about the financial side of the marriage.

Another option is to work out a prenuptial agreement by using Collaborative law. This is an appropriate use and natural fit because:

• it requires each party to have their own attorney,
• it's based on the goals and needs of the parties,
• it provides for complete disclosure of finances,
• a financial planner often works with the parties to provide expert tax and planning help, and
• the parties work together to reach mutual agreements without one party coercing the other.

One of the greatest benefits is that Collaborative Law forces both parties to articulate their goals and needs and to think in concrete terms about how they want their future to look. The prospective spouses can consider how to manage their investments, life insurance, and health insurance, as well as planning for long-term care for later in life. Using creativity to help them achieve their personal and family goals, couples can resolve financial issues early, keep the peace in their families and establish a firm foundation for personal and family financial security.

How to Avoid Financial Mistakes in Divorce

There was a nice story in Forbes in February 2005 entitled "Top Financial Divorce Mistakes". It listed 9 common mistakes and how to avoid them. The list is actually a good example of why Collaborative Law can really be beneficial. Here's the list with a commentary showing how Collaborative Law fits in.

1. Having unrealistic expectations. That's actually a very serious problem which can sabotage a Collaborative case (just like it does a regular litigated case). If both attorneys, and any other professionals involved, can spot such expectations at the outset, disaster can be avoided, if the party is willing to listen to reason. The case should not be handled Collaboratively if one or both parties have unreasonable goals. One of the good things about Collaborative Law is that the goals and expectations are explicitly discussed at the outset, so there is time for re-orientation or changing approaches. There is a greater chance of uncovering unrealistic thinking by using the Collaborative approach since the expectations are openly discussed at the outset.

2. Not communicating. It is impossible to not communicate with your attorney or spouse in Collaborative Law. There are discussions before and after joint meetings and many cases utilize a mental health professional (MHP) to facilitate communication.

3. Getting into an endless battle. Collaborative law focuses on the future and not on revisiting past battles and issues. An MHP can help both parties avoid re-engaging in old arguments and to stay on track focusing on their goals.

4. Getting hung up on the numbers. One of the key elements of Collaborative Law is interest-based negotiating, rather than positional bargaining that is common in the litigation approach. Parties in litigation often do get hung up on numbers and percentages. In Collaborative Law, the parties work to achieve their goals and strive to create customized solutions to problems where the numbers are secondary.

5. Focusing on the present and not on the future. Using a neutral financial professional (FP), it is possible to understand the present situation, but a sometimes greater benefit is being able to project out into the future, both in terms of your needs and in terms of various means of meeting those needs. The FP is an expert at analyzing the future needs of the parties and can help educate the parties about the opportunities available that are consistent with their goals.

6. Forgetting to assess tax. With a financial professional in the case, it is standard to consider the tax consequences of any alternatives under discussion, something that is not often done in litigated cases.

7. Overlooking important information. The financial professional will make sure the parties provide all necessary financial information and understand it. There is rarely such a person working in a litigated case. A Collaborative case using a neutral FP results in a better analysis of the parties' financial situation.

8. Failing to untangle all joint finances. The parties can have direct discussions to address issues of joint finances and will have the benefit of two attorneys, a financial professional and sometimes a mental health professional who will help them decide whether or not to keep financial ties intact.

9. Failing to take into account the amount of time you'll need to get your career back on track. That is a topic that would ordinarily be directly addressed by the parties, their attorneys, the financial professional and perhaps the mental health professional. In addition, the parties may set up a plan for training and support to cover the likely period of time for re-adjustment into the work force. With Collaborative Law and the team working together, there is a much greater chance of direct action being taken to benefit the spouse who has been out of the workforce.

The Forbes article pointed out some significant and fairly common problems that occur in litigated divorces. They illustrate some of the many reasons why Collaborative Law often is the better option for divorces.

How to Settle Relocation/Geographic Restrictions Issues

One of the most difficult and emotional issues that arises in family law cases is relocation, or moving the children to another area. When both parents have been active and have close relationships with the children, this becomes a very difficult topic to discuss, much less reach an agreement on. Many divorce decrees provide a geographic restriction on the parent who has primary possession of the children. The most common language used in Tarrant County is to restrict the children's residence to Tarrant and contiguous counties (ones that physically touch Tarrant County).

When one parent has not been very involved in spending time with the children, it is easier for the other parent to move the children somewhere else. Sometimes, the non-custodial parent doesn't object. Other times, the non-custodial parent may object, but the court will permit the move with the thought that there is not much relationship to be harmed by the move.

The difficult case is where both parents are good and actively involved parents, and the primary custodial parent has a good reason to be moving, such as a mandatory job transfer. That is the type of case that can probably be better handled by Collaborative Law.

The case could be approached as follows:

1. The first step is to determine the underlying goals, needs and interests of the parties. The goals might include such things as providing quality education, a safe and comfortable home, having extended family around (with various benefits), and maintaining an excellent, active relationship with both parents. In a case like this, it would be helpful to have a neutral child specialist to work with both parties, beginning with developing the goals.

2. The second step is to gather the facts. Is the move voluntary or involuntary? Are there any benefits or any disadvantages to the children? A move could be based on any of the following situations: career advancement, required transfer, voluntary move, a move to meet a child's needs, or a move to take advantage of special opportunities elsewhere, among other reasons. Other factors to be considered could include, among other things, the distance of the move, transportation possibilities, the ages of the children, transportation costs, and how much time or what type of time each parent had been spending with the children.

3. The third step is to generate options. Again, a child specialist could be invaluable here. Among the options for many cases would be: move, don't move, one or both parents take a new job, different transportation methods, different ways of sharing or offsetting the costs, both could move, change custody, change the allocation of time with the children, permit extra time, try
video conferencing over the internet with the children, arrange frequent phone calls or emailing, or change the holiday schedules, among other things.

4. The fourth step is to evaluate the options and negotiate to an agreement. In the course of evaluating the various ideas, new ideas or plans could emerge. The child specialist can be very helpful in this phase as well.

Relocation can be a very emotional topic for involved parents. Collaborative Law provides the structure, assistance and opportunities to work through the difficult issues in a civilized manner that can lead to an acceptable solution that allows the parents to remain on good terms and assures that the children's best interests are protected.

A Resource to Compare Schools

When parents live in different school districts, there must be a decision about which school a child will attend. Many factors can be considered when making that decision. As in many other issues, it can be really helpful to get some objective facts to use to compare schools.

J. Benjamin Stevens, who writes the South Carolina Family Law blog, had a helpful post recently dealing with the school issue. He mentioned the web site, "SchoolMatters.com", which can provide information about multiple schools and compare them. It is a free service provided by Standard & Poor's. The site has information about the performance of students on reading and math standardized tests, the number of students attending and the student-teacher ratio, among other things.

Such objective information can be very helpful for parents working together to find the best educational opportunities for their children.

How to Save Money in a Collaborative Divorce

When people learn about Collaborative Law as they are about to begin the process of divorce, many become very interested in trying it because of the opportunities for creative solutions, privacy, control over the outcome, civility, etc. that are associated with Collaborative Law. Some are a little skeptical about whether they and their spouse can get along well enough to work out an agreement. When a Collaborative attorney explains that the Texas model of Collaborative Law offers the assistance of a neutral mental health professional (MHP), also known as a Communication Specialist or Coach, to help both parties operate at their most effective and cooperative levels, they like the idea, but sometimes worry about the cost.

What we have learned is that the cost of the MHP is a great investment because the MHP helps both parties communicate appropriately and maintain a safe and relatively calm environment. Having a neutral communication specialist during the Collaborative process actually helps meetings be more productive and less argumentative than they could be otherwise. In addition to being more comfortable and satisfied with the process, the parties actually end up saving money.

In a Collaborative Divorce, the phrase, "more is less" really makes sense. By adding another participant to the process, the parties operate more efficiently and spend less time arguing. The time they spend in meetings is productive because they are assisted by the neutral MHP who helps the parties communicate in more helpful ways that advance their own interests. While it may seem personally satisfying to berate a spouse for various faults, those comments rarely contribute to an eagerness for that spouse to want to settle.

There are some potential difficulties even in Collaborative cases with parties who really want the process to work out. Inevitably, there are some tough, emotional meetings that challenge the abilities of the parties to maintain the civility that is a hallmark of Collaborative law. Hiring a neutral mental health professional may be the single best way to save money in a Collaborative Divorce.

(A slightly different version of this posting was previously published in the Divorce and Family Law in Tarrant County, Texas blog.)

What Issues are Appropriate for Collaborative Law?

Many people think Collaborative Law is useful only in cases where both parties are basically in agreement. They think that spouses or ex-spouses couldn't sit down and have civilized negotiations on sensitive child custody or financial issues. Because couples get into arguments on their own, some think that Collaborative Law can't work in high conflict families or where there may have been infidelity or other misconduct. Those people are wrong because Collaborative Law, with its emphasis on looking forward and not spreading blame for past actions, is usually a much better vehicle for resolution of significant issues. Where parties value privacy and controlling their own destiny, Collaborative is a much preferred alternative.

Here are some of the issues which can be effectively resolved with Collaborative Law:

• Divorce
• Annulment
• Prenuptial agreements
• Post-marital partition agreements
• Division and sharing of parental rights, powers and duties
• Child custody
• Child support
• Visitation, including specialized schedules for certain occupations
• Education expenses, from day care to pre-school to private school to college to graduate school
• Alimony/ spousal maintenance
• Property division
• Complex property division issues
• Debt division
• Tax planning
• Paternity issues
• Break-up of same sex relationships
• Modification of existing orders
• Enforcement of existing orders
• Health and life insurance issues
• Disability needs
• Special needs children
• Professional practices
• Family businesses

While this is not an exhaustive list, it does provide an indication of the broad range of issues that can be successfully navigated through the use of the Collaborative Law approach.

Making Child Custody Decisions

Divorce can be very difficult emotionally. Powerful feelings can get stirred up when discussing custody arrangements or a change in custody. Getting into a custody fight can be one of the most expensive, emotionally draining and destructive things someone can do. That’s true whether it is an initial custody determination or a subsequent modification or change of custody. A custody fight is often as damaging for the children as it is for the adults. For those who want a more civilized means of resolving such disagreements, consider the following advantages of Collaborative Law.

1. Collaborative Law puts the focus on the real underlying goals of the parties. Sometimes people ask for primary custody when they really want something else, such as to be included in major decision-making, to get more time with the children or to have a different schedule with the children. There could be any number of truly important issues, but a parent may think that seeking primary custody is the only way to meet their needs. The professionals in a Collaborative case help the parties dig deep and understand their most important goals and don’t let them approach the matter superficially. Better solutions are possible when the parties are focused on the right issues.

2. Collaborative Law is a process that encourages the parties and attorneys to bring needed neutral expert helpers to assist the parties identify their goals, discover various options and select appropriate solutions that tie in to their goals, needs and interests. Child experts can be brought in to work with both parties and help them develop unique plans to fit their circumstances.

3. The parties can be more creative in a Collaborative case. In a traditional litigation case, the attorneys, parties and judges normally just default to the standard guidelines for child support and visitation, as well as standard divisions of parental rights, powers and duties. Those can be considered in a Collaborative case, but it is just as useful to see the variety of guidelines developed by various other states’ laws. All of that information can be combined and refined with additional original ideas, to come up with custom plans to meet the parents’ needs. A plan can be developed that preserves and utilizes the strengths of each party.

4. Collaborative Law is an ideal environment to set up a temporary test arrangement or transition to try out one or more plans for changes. The parties can set up temporary plans and let experts help evaluate their success as well as suggest refinements. There doesn’t have to be just one final decision made after a contentious build-up. Changes can be made gradually or temporarily. New adjustments can be easily made since the parties control the timing and procedure of the process. Collaborative Law is a much more flexible process than litigation.

5. Most importantly for many people, using the Collaborative approach allows the parties to preserve peace and family relationships. Everyone works cooperatively. There is less competition between the sides when the stakes are changed from "winner take all". The children really come out ahead when they see their parents getting along and speaking of and to each other in friendly terms.

Experience has shown that creative and successful plans can be developed through using the Collaborative approach. In matters involving children, it makes sense to use the best approach available, which is usually Collaborative Law.

Vermont Collaborative Law

You may be wondering why there's a post about Vermont here in the Texas Collaborative Law Blog. The answer is that some points were raised that are just as relevant here in Texas.

There was a very nice short article about Collaborative Law in today’s Burlington (VT) Free Press. The article was really a low-key introduction to Collaborative Law and was based on the experiences of a local attorney. The author reaffirmed the advantages of using the Collaborative process and contrasted the traditional litigation system.

The article was followed by a comment from someone who apparently had had a bad experience with divorce and hadn’t bothered to read the article. The comment writer had three main complaints which should be answered. They are fairly common statements made by people who are unfamiliar with how Collaborative Law really works. This writer claimed that Collaborative Law was basically the same as no-fault divorce, which clearly shows a lack of knowledge about the subject. Here are the issues the comment raised:

1. Collaborative Law is good for short marriages with no assets or kids. Actually, anything would work for those situations. Collaborative is really more appropriate where there are significant assets or where there are some disputes regarding the children, such as dealing with custody, visitation, support, etc. Collaborative Law is a much better approach for dealing with difficult or complex issues.

2. The process is unfavorable for women with dependent children. Actually, the Collaborative process is very helpful for both parents because they both get to participate in, and control the outcome of, decision making. They don’t have a decision imposed on them by a third party or by arbitrary guidelines. Neutral expert help can be brought in to assist the parties in exploring new solutions and reaching agreements beneficial to both sides.

3. Fair deals are hard to come by. The initial problem with that statement is that "fair" is completely subjective. What’s fair to one party may seem completely unfair to the other. A better approach is to identify what each party’s goals, needs and interests are and then try to come up with ways to achieve them. Both parties can be satisfied with meeting their goals and don’t have to deal with unrealistic and unquantifiable standards such as fairness. If one’s needs are met, the results have to be satisfactory.

Hopefully, people facing the possibility of divorce will seriously investigate the possibility of using Collaborative Law to help solve their problems and not just accept someone’s superficial and erroneous assumptions about the process.

An Overview of Texas Collaborative Law

Collaborative Law is a dispute resolution system that permits 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. Instead, they set goals, gather information, create solutions and reach agreements in a series of relatively short meetings which they schedule themselves. They control the timing, the subjects and, most importantly, the solutions. Courts are used to formalize the agreements once the parties have worked things out.

One of the reasons why Collaborative Law works is that once the Collaborative participation agreement is signed by the parties and their attorneys, the attorneys are required to withdraw from representing their clients if the process fails to reach an agreement and someone wants to go to court. Those attorneys cannot represent those clients in a contested matter in court. That creates a huge incentive for both attorneys and clients to stay with the process and look for other solutions when the going gets a little tough. In a regular litigation case, the easy cop-out is for one or both parties to tell the other party that they will just let the judge decide if the other party won’t agree to an offer. That can’t be done without costing both parties a lot of money and without the attorneys losing business. Everyone loses by that alternative, so everyone generally keeps trying to find an acceptable solution.

Early statistical reports are indicating that at least about 93 to 95% of Collaborative cases reach agreement. That is comparable to the success rate of a good mediator in Texas who usually comes into the process after both sides have already beaten each other up (figuratively), gotten ready for trial and spent a lot of money.

Collaborative Law won’t work for everyone. It will work in cases involving affairs, custody disputes, gay or lesbian issues, prenuptial or partition agreements, division of complex property, high income families, one parent who hasn’t worked outside the home for years, special needs children and other parenting issues, among other things. It may not work if one or both parties have unreasonable expectations, some mental illness, some substance abuse, some situations of domestic violence and some other situations. In general, Collaborative Law is appropriate for most family law matters, especially where there is value in maintaining good family relationships, such as when children are involved.

This blog is set up to provide information about the Texas approach to Collaborative Law. Since 2000, when Collaborative Law was introduced in Texas, the process has evolved quite a bit in Texas and elsewhere. We have moved from having "4-Way Meetings" with just the two attorneys and the two parties, to have "Joint Meetings" with the two parties and their attorneys, sometimes joined by a mental health professional and/or a financial professional and/or a child specialist and/or another neutral specialist. Sometimes the parties work on parts of the process with just a neutral specialist and then go back to the attorneys to review what has been covered. Sometimes the parties will work with a life coach to help them get through the process.

Collaborative Law in Texas has become an opportunity to customize an approach to help the parties to a divorce or other family law matter deal most effectively with their unique facts, needs and opportunities in a private, respectful and dignified manner. The process uses a problem-solving model that is easy to understand and produces creative, appropriate and welcome solutions to often difficult and troubling issues.

In Collaborative Law, we go through a five-step process to create solutions. First, we have the parties identify their most important goals, needs and interests. We ask the parties to think about the big picture and to think both short-term and long-term. Second, we gather information about the facts of the case. We learn about the financial issues and children and family issues. Third, we go through a brainstorming process in which we generate as many ideas as possible (good, bad or even ridiculous) to resolve each issue. That is done without criticizing or judging any ideas as we write them down. Fourth, we go back through and evaluate each idea. Is it feasible? Will it help achieve an important goal of a party? What are the consequences of trying it? Fifth, after a thorough discussion and evaluation, decisions are made and agreements are reached.

Collaborative Law has become the preferred method of dispute resolution for many attorneys and other professionals in Texas. There are over 400 members of the Collaborative Law Institute of Texas, the statewide organization of Collaborative professionals, and there are probably a total of more than 700 professionals in Texas who have been trained in Collaborative Law. The International Academy of Collaborative Professionals has well over 1000 members in the U.S., Canada, Great Britain and many other countries. The process works for clients and the attorneys and other professionals find it a more enjoyable and rewarding way to help people through very difficult times.