When I tell people I am a divorce lawyer, a common response is, “Wow, I am so sorry, that’s tough.” My legal practice area often elicits such a response from lawyers and non-lawyers alike. We all know why. Divorce is hard. But it doesn’t have to be as hard as the reputation it has earned implies. There is a better alternative known as collaborative divorce.
A New Approach to Divorce
The collaborative divorce movement began around 1990 when Stuart Webb, a divorce lawyer, promoted an idea for a resolution-driven process centered around negotiations throughout the entire divorce process. Now known as “collaborative divorce,” the movement is nationwide, and numerous professional organizations1 educate and empower family law attorneys on this alternative to naturally adversarial, traditional divorce.
Collaborative Divorce Cornerstones
- What makes collaborative divorce better than traditional divorce are its four cornerstones. First, litigation is removed from the process. Governed by the Collaborative Family Law Act, the foundation of collaborative divorce is “to encourage the peaceable resolution of disputes.”2 Litigation is suspended, allowing clients to focus their energies on working toward resolution without discovery demands or court interference.3
- Second, clients voluntarily enter into collaborative divorce. The process begins when clients willingly sign a participation agreement.4 A court cannot order a person to participate in a collaborative divorce.5 Consequently, a client can terminate participation at any time without grounds.6 To minimize that risk, it is imperative to fully educate a client on the process as well as the benefits and risks before they sign a participation agreement. If one or both clients terminate the collaborative divorce prior to resolution, the divorce process effectively starts over. The clients cannot continue to be represented by their collaborative attorney in subsequent litigation and much of what occurred in the collaborative process is confidential.
- This leads to the third cornerstone – confidentiality. Notwithstanding limited exceptions, communications in a collaborative divorce, whether prior to or after commencement, and records of those communications are confidential. They may not be used as evidence by one client against another in future proceedings.7 Such confidentiality facilitates a safe space for honest, open communications and productive negotiations without fear of retaliation.
- Lastly, collaborative divorce involves a team approach. Like divorce litigation, an attorney represents each client. However, unlike divorce litigation, other professionals known as neutrals are engaged to assist the clients. Customarily, a mental health neutral, such as a licensed professional counselor, and a financial neutral, such as a certified public accountant or certified financial forensic, are involved. When the divorce involves a child, a child specialist neutral may be included. The attorneys and neutrals form the team whose collective goal is to support the clients in reaching final resolution.
Divorce is hard. But collaborative divorce makes it a little less stressful. It places control of the divorce process in the hands of the clients, not the court system or attorneys. And most importantly, collaborative divorce creates an environment that respects the clients’ humanity while also empowering them to experience the difficulties of divorce with compassion and grace.
- In Texas, the umbrella organization for collaborative divorce professionals is Collaborative Divorce Texas.
- Tex. Fam. Code § 15.001
- Tex. Fam. Code § 15.101 (b)(1)
- Tex. Fam. Code § 15.102 (a)
- Tex. Fam. Code § 15.102 (b)
- Tex. Fam. Code § 15.102 (d)
- Tex. Fam. Code § 15.114
Lené originally wrote this article for the Dallas Association of Young Lawyers in 2022.