Collaborative Divorce: Top 5 Questions
There are lots of things about Collaborative Divorce that are misunderstood. These Five Questions and Answers should clear up some of the more common misconceptions:
1. Can my spouse and I do a Collaborative Divorce without lawyers?
No. The term Collaborative Divorce does not mean the same thing as Amicable Divorce, Agreed Divorce, or Uncontested Divorce. A Collaborative Divorce may, in fact, be amicable. If it ends with an Agreed Decree, then it is an agreed divorce. And a Collaborative Divorce may be more or less uncontested.
But, a Collaborative Divorce in Texas is by definition a case that is conducted pursuant to the Collaborative Family Law Act, which is Title 1A of the Texas Family Code. Section 15.052 of Title 1A states that a Collaborative Divorce is one “in which parties: (A) sign a collaborative family law participation agreement; and (B) are represented by collaborative family law lawyers.”
So, when a potential client comes to an attorney and says, “I have been doing a Collaborative Divorce with my husband/wife and his/her lawyer, but now I think I need to get a lawyer,” the potential client is at best mistaken as to what is going on, and at worst being defrauded.
2. Do we have to use Neutrals in our Collaborative law case?
The traditional Texas model for Collaborative Divorce is two lawyers, plus two neutrals – a Financial Professional and a Mental Health Professional.
The Financial Professional is tasked with gathering and assembling the financial information of the parties, helping the parties work on budgeting, and offering expertise on various financial matters.
The Mental Health Professional is not a part of the process to psychoanalyze the parties. His or her job is to help the parties develop a parenting plan, if there are children involved, conduct the meetings that are a part of the Collaborative Process, and offer suggestions for matters that will help meet the parties’ personal goals, e.g. closure with step-children.
But, there is no requirement that neutrals be used. Or that both neutrals be used. If the parties and the attorneys agree, a Collaborative Divorce can proceed without one or both of the traditional neutrals.
3. Do I have to use an attorney from the list that my spouse gave me?
No. Although many Collaborative Divorce attorneys are members of “Practice Groups,” not all are. Moreover, there is no requirement that a husband or wife choose a Collaborative attorney from the list provided by his or her spouse.
There is no requirement to choose an attorney from any Practice Group, and the choice of an attorney is completely up to the party.
4. Will a Collaborative case be faster than a non-collaborative case?
There is no way of knowing. A collaborative divorce may be faster than a litigation case, but it may also take more time. A non-collaborative divorce must last for at least 60 days unless a waiver is obtained based upon family violence. How much longer a case lasts depends upon whether the parties can settle and when.
It is unlikely that a Collaborative Divorce will take less than 60 days, but many Collaborative cases end far earlier than many hotly contested divorces.
5. Will a Collaborative Divorce be less expensive than a non-collaborative divorce?
Once again, there is no way of knowing. Collaborative Divorces involve a series of meetings with at least two attorneys, and probably two neutrals billing at hourly rates.
Before each meeting, there may be some telephone calls between the attorneys and their clients and between the Team of attorneys and neutrals – all billed at hourly rates. There may be pre-meetings of the Team before the Joint meetings of everyone, and there is typically a Team debriefing period after the meeting – all billed at hourly rates.
Given that it is unlikely that a Collaborative Divorce would be wrapped up without at least three or four lengthy meetings, it’s not hard to see that there may be considerable cost to a Collaborative Case.
But, given that a non-collaborative case can involve lengthy hearings with a considerable number of hours spent in preparation by both sides, and can sometimes involve both parties hiring financial and/or mental health experts, it’s easy to see that in some cases Collaborative Divorce is much less expensive than non-collaborative divorce.
6. Is Collaborative Divorce only appropriate if there is no conflict?
No. Collaborative cases can have much of the same angst that traditional cases have – sometimes more. A Collaborative Divorce has many benefits that traditional cases do not, and they can be successfully completed even where the parties have serious disagreements and issues.