How Collaborative Law and Litigation are Alike

Most of my writing about Collaborative Law discusses how it is different from Litigation.  For a change, I will explain some of their limited similarities.

1.  Both processes use the same basic time periods. 

• One of the parties must have lived in Texas for at least 6 months and the county they file in for the last 90 days.  
• There's also a 60-day waiting period, from the date the case is filed until a divorce can be granted by the Court.

2.  The parties need to gather and share information about the assets, liabilities and children.  In litigation it is normally in writing and formal.  In Collaborative, we usually involve the neutral professionals  in obtaining, reviewing and organizing the information.  In Litigation cases, the attorney usually takes charge of it.

3.  The attorneys create a detailed court order with the agreement.  They want it clear and enforceable.

4.  Documents take time to  prepare.  The Decree of Divorce, sometimes the Agreement Incident to Divorce and any Qualified Domestic Relations Orders always seem to take a long time.

5.  The parties must get the Court to approve the agreement.  There must be a formal, signed court order.

Sometimes people get in a hurry in Collaborative cases.  Hopefully, they will keep in mind that some things just can't be ignored or sped up.  Collaborative cases usually are faster than Litigated ones, but we still have hoops to jump through.

Protecting Your Privacy

One of the biggest advantages of using Collaborative Law to resolve family law issues, such as divorce, is the protection of privacy.

Privacy is very valuable to a number of people.  This includes:

• Professionals, such as doctors, attorneys, CPAs and others
• Business people, especially ones involved in owning and running businesses
• Politicians and office holders
• Athletes
• Educators
• Wealthy people with substantial assets
• A lot of other people who don't want their personal and financial affairs out in the public's view.

How does Collaborative Law protect privacy?  Here are some ways:

• The process involves a series of private meetings, rather than court appearances
• The meetings take place in private, even neutral, locations
• The meetings and discussions are confidential
• There is minimal involvement with the Court
• The terms of the final agreement can be kept private by using an Agreement Incident to Divorce which is not filed with the court papers
•  Discrete professionals help the parties come to agreements
• There is no battle of pleadings splashing allegations in the public view
• There is no testimony in court, other than at the prove-up at the end

If you are facing a divorce or other legal action, you should find a trained Collaborative lawyer and investigate whether your case would be appropriate for Collaborative Law.

Need a Creative Solution?

Some people have very simple divorces which require no imagination.  They are able to utilize the standard guideline child support and visitation.  They split everything 50-50 and everyone is satisfied and ready to move on.

Other people don't fit into standard.  They need something different, up or down, for child support.  They may not like how the standard visitation schedule works in their case.  There may be some special financial concerns that require creativity.

If the "non-standard" people go to court, they will probably get a standard solution imposed on them.  Even if the other side will be a little flexible, that usually does not provide much relief because every court uses the "standard" solutions as the default position.

The "non-standard" people include a variety of parties who need special consideration for various reasons.

• There may be special circumstances, including financial issues, emotional problems and other things.
• Children in the case may need special visitation provisions for a variety of reasons, or a parent may need special visitation because of work, travel or other reasons.
• Extra support may be needed for medical reasons
• A party may need, but not qualify for, alimony
• Special schooling may be needed, and paid for.

So, how does Collaborative Law provide a more creative solution?

• We use neutral Mental Health Professionals and Financial Professionals who can help the parties brainstorm to find new options
• We sometimes will use a neutral Child Specialist to deal with difficult situations
• The Financial Professional can help us realistically assess future needs and future financial capabilities
• We can get neutral business and real estate appraisers
• We sometimes work with a mortgage specialist who is good at finding ways to reduce payments or get some cash out of a house
• If needed, we can use personal coaches or counselors for one or both parties
• The biggest reason is that we are not bound go standard solutions or guidelines.

Do you need more than you could realistically get in court or different solutions? If so, you should talk with a trained Collaborative Lawyer to find out if Collaborative Law would be a good fit for your case.

Flexible Timing

In addition to other advantages of Collaborative Law, one that is not discussed as much is the ability to have flexibility with the timing.

Collaborative divorces are bound by the basic time limits in the Family Code.  In order to file for divorce, one of the parties must have lived in the county of filing for the last 90 days and the State of Texas for at least 6 months.  In addition, there is a 60-day waiting period, beginning on the filing date, before the divorce can be finalized; that is not an automatic end date, just the minimum time the papers have to be on file before the divorce can be granted.

How is Collaborative Law more flexible? It goes back to who controls the case.

The case can move very quickly, once the 60-day waiting period is up, if both parties are ready and both want to move quickly.  The parties decide how quickly they want to move.They don't have to wait on court hearings.

On the other hand, the case can move very slowly for any number of reasons, if the parties want it.

• There may be health issues that require waiting.  
• It may take a while to get the finances figured out. 
• The parties may need to wait for one or both to get a job.  
• More education or training may be needed.  
• There may be some kid issues that take time to resolve.

If both parties are ready and want to speed up, they can in Collaborative Law.  If one or both parties need to slow down, that can also be arranged.  If the parties were in Litigation, they would not control the timing.  Very often a scheduling order is done fairly early in the process, and that will override the wishes of the parties.

If you have special timing needs, visit with a Collaborative Lawyer and find out if your case would benefit from using the Collaborative process.

A Kinder Way to Divorce

Contrary to popular images, not everyone going through a divorce wants to make a big fight of it.  Actually, there are many people who want a low-key, "nice" divorce, without a lot of fighting.  The ideal situation is when both parties want a peaceful divorce.  That actually occurs more often than you might expect.

Of course, there are still plenty of people who want to duke it out in court.  I know lots of combative attorneys I can refer them to.  Unfortunately, the "fighters" don't realize, until too late, that having a big divorce battle usually means greatly increased costs and a long, drawn-out proceeding.  At least the attorneys come out in good shape, unless the clients run out of money.

For those who want a less-destructive way of getting divorced, there's another way to divorce:  Collaborative Law.  Here's why:

1.  We use a neutral mental health professional (MHP) in Texas in most cases. The MHP is mainly a communication coach who helps the husband and wife learn to communicate better.  That includes learning to listen effectively, choosing words carefully and being respectful to each other, among other things.  The MHP runs most of the meetings we have and I have seen a number of situations where the MHP saved the day by noticing a problem and helping the parties be more effective and less offensive toward each other.

2.  We also use a neutral financial professional (FP) to gather, organize and help interpret financial information for the parties.  The FP leads the discussions on the finances and helps both parties make informed decisions that help them meet their goals. Both parties are more comfortable being able to rely on a knowledgeable and neutral expert to explain the situation and help them evaluate options for settlement.

3.  The attorneys work together, while still representing separate clients, to make sure final agreements can be made.  We avoid ugly court hearings, testimony and cross examination in court and depositions.  The attorneys don't stir the pot with incendiary pleadings and arguments. We are all working for peaceful solutions that match the clients' needs.

If would be nice if everyone acted like reasonable adults during divorces, but that will never happen.  If you are interested in that type atmosphere, you should consider trying Collaborative Law.  You  should find a trained Collaborative Lawyer and discuss whether it would be appropriate in your case.  Good luck!

What Happens at the 1st Joint Meeting?

Most of the first Joint Meetings in Collaborative cases follow the same pattern.  The purpose of the meeting is to make sure everyone starts out with the same understandings of the process, including the steps we follow and the obligations of each of the participants. 

At the 1st Joint Meeting, we don't do much case-specific work or make decisions on how to divide things up.  We wait until the proper time to do that.

Instead, we are building a foundation for the process to work in the case. It's essential, even though it can be a little boring! We all have to make the best of it.  The process gets more interesting later on.

Here's what generally happens:

• Introductions.  We usually introduce each of the professionals and each party.  We agree to use first names with each other so the process can be less formal.

•  Discuss the process. We usually go through the Roadmap to Resolution which outlines each step we follow in the process.  Normally, the neutral mental health professional goes over the Expectations of Conduct with the parties.  We want to be sure everyone really understands what we will be doing and how it works.

• Sign the Participation Agreement.  This is a relatively long document that is the underlying contract between the parties.  It sets out in great detail the rights and responsibilities of the each participant, including the attorneys and neutral professionals.  It tells how the process works. The Agreement also has a section that commits the parties to maintain the status quo on the finances and property involved in the case, similar to the Injunction typically issued in a litigated divorce. 

        We want everyone to understand the process, and commit to following the rules.

• Develop the goals for each party.   The parties work with their attorneys before the meeting and then explain the goals and needs they want to meet by the end of the process.  We set up targets so we can meet the specific needs of each party, instead of just asking for some arbitrary percentage of property or standard terms relating to the children.

• Deal with immediate concerns.  If there are issues that need to be resolved temporarily or immediately, we work together to help the parties.  Typically, these may be interim arrangements relating to the children, finances or housing.

• Schedule future meetings and homework.  We try to schedule at least a couple of Joint Meetings and some meetings with the parties to work with each of the neutral professionals before the next Joint Meeting.  Homework typically involves gathering financial records and information about the children.

If you need anything to be done at the first meeting that is not included above, please discuss that with your Collaborative attorney.

What are Off-Line Meetings?

In Collaborative Law cases, you may hear the attorneys or other professionals refer to "off-line" meetings.  They are a refinement to the process that really helps the clients.

What are off-line meetings?  They are meetings between the clients and the neutral professionals, without the attorneys present.  The meetings can be with one or both of the parties.  If the parties meet individually with the professionals, normally each party will meet with the professionals, rather than just one party meeting with the professional.

Why have the off-line meetings?  They save time and money.  It is much more efficient for the parties to meet directly with the mental health professional (MHP) and financial professional (FP) to provide information and to get some guidance on what the issues are and how they are sometimes resolved.

Such meetings are also easier to schedule since they don't have to work around the calendars of two attorneys.

By not having the attorneys attend the meetings, the parties save a lot of attorneys' fees. Plus, the neutral professionals normally charge much less per hour than the attorneys do.

The MHP or child specialist can help the parties identify issues and do some preliminary work on formulating plans for support and possession schedules.

Similarly, it's better for the FP to directly tell the parties which documents are needed and then collect the documents from them.  The FP also prepares a spreadsheet with the information organized and reviews it with the parties before there's a joint meeting.

Bonus:  Both the FP and the MHP are very qualified at what they do and they help the clients produce great quality work that helps move the case toward final resolution.