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The Pros and Cons of Collaborative Divorce in Texas

Have you ever seen a courtroom drama centered around a divorce? This could be a movie or television show that depicts what it is like for two people who have gone through a divorce Usually it involves a lot of fighting, yelling and a judge banging their gavel against the bench until the parties can calm themselves. The spouses are very rarely sympathetic characters. Sometimes neither party ends up getting what they want in the divorce, but the overall impression is that both sides would have paid a fair bit of money in court costs and attorney's fees to go before the judge. 

There is an alternative to this type of divorce that I think is worth mentioning. In a collaborative divorce, you can have your cake and eat it, too. By this, I mean that you can get divorced and minimize the stress, drama, and fighting that goes into the process. While no process can promise that you will not experience stress and drama, I think that collaborative divorce has something to offer people who find themselves facing a divorce but who are cognizant of the risks that a divorce can provide as far as cost, stress, and time commitments. 

For one, you and your spouse will not have to go before the judge for a trial. No, most divorce trials in Texas do not look like the type of trials that you see in movies or television shows. A trial is a major time and money commitment for those who need to go to the courthouse for a judge to play a tiebreaker on those issues that are not easily solved through negotiation. While a judge can and will do so, you and your spouse should decide the issues in your case. After all, no matter how upset the two of you are at one another there is still a great deal of history between the two of you and institutional knowledge when it comes to your family. Better for spouses to determine the outcome of their divorce rather than a judge who is not intimately familiar with the workings of your family. 

In a contested divorce, spouses go at one another throughout the divorce process intending to win on various issues related to child custody and community property division. At least in the minds of the participants, there will be a winner and a loser on these important issues. The stakes are high enough and the issues are critical enough to set aside the concerns that spouses may have with cost, stress, and the time commitment to litigate a tough divorce case. If the juice is worth the squeeze, then this wouldn’t be such a tough decision. Otherwise, the stress alone of a contested divorce case is enough to cause a lot of people to simply give up and seek any other option available other than litigation in a divorce scenario. 

Why a collaborative divorce may be best for you

A lot of people have a fear of public speaking and generally taking their business into a public forum. That is what you are doing when you go through a divorce and take your case into a courtroom. The events of your life- in your marriage, in your home, with your children, will be brought into the courtroom and made part of the public record. For some people, this is not a major concern. For others, this is enough to make a collaborative divorce seem to be even more attractive as an option. If you want to avoid a situation where you are going through a divorce in front of people in a courtroom, then a collaborative divorce is something that you should seriously look to as far as options are concerned. 

Not only is going before a family court judge difficult for many people but even engaging in heavily emotional conversation and negotiation with your spouse may be too much for you to handle. Some of us just pull back from conflict as much as possible and always have. We see these people work in jobs where they can be out of the spotlight and work in a collaborative environment. It is easier to say “yes” than “no” for many people. If you have a problem saying no to your spouse or if you have a history of backing down when push comes to shove in negotiating issues with your spouse, then you may be better off considering a collaborative divorce first and foremost before a traditional divorce. 

Do you want to spend as little time as possible in completing your divorce? Sure, most every person who goes through a divorce would answer in the affirmative to this question. Time spent in a divorce is time spent away from your children, your work, your home, and your hobbies. Even a relatively short divorce can feel like it takes forever to complete. Given this reality, if you are especially pressed for time or do not want to spend a moment more in your divorce than you have to then a collaborative divorce may be right up your alley. Collaboration forces you and your spouse to come together to put your heads together and focus on the most important elements of your case. The entire structure of a collaborative divorce is focused on reaching settlements rather than pushing you toward a showdown in the courthouse.

This is to say nothing of how a divorce trial can be extremely expensive. Let’s start this conversation by talking about retainers. A retainer is a small sum of money that is paid to your attorney to secure their services for you in your case. That sum of money is a good faith show that you are going to pay your attorney for the services he or she will render on behalf of you and your family. The retainer is quickly eaten up by the costs of the case and the work that must be performed early on in most divorce cases. The size of the retainer that you will be expected to pay will vary depending upon the attorney who is working for you as well as the circumstances and factual complexity of your case. 

A second retainer may be required for your attorney to be able to prepare for and attend a contested trial. A trial is a situation where you are likely to give testimony in opposition to the points being made by your spouse and in support of your case. The judge will consider your evidence and that of your spouse and will decide on the outstanding issues of your case. This is the most important and time-consuming step in your case even though it occurs at the very end. The more hours that your attorney and their staff put into preparation for your case the more you will be billed. There is a direct relationship between greater hours worked and a greater amount of money spent by family law litigants 

We all want control in our lives. In a failing marriage, it can feel like everyone but you have control over your life. You may have been seeking a divorce to maintain some degree of control over your life but have not been able to do so successfully. Divorce is seen by you as a last resort to regain your footing and exert some control over yourself and your case. As we mentioned earlier, nobody knows your circumstances better than you and your spouse. Even though you all may be fighting and not seeing eye to eye on much of anything the two of you have seen what works and what does not work in your household. If you can agree to work with your spouse to create a fair outcome with community property division and child custody issues, then most of the hard work in your divorce will already have been completed. You just need to iron out the details and insert the final language into a final decree of divorce to truly be at the end of your case. 

Just when you think that your trips to the courthouse are over, many people who go through divorces find that their courtroom experiences are only just beginning in the divorce itself. Unfortunately, it is sure that you can find yourself back in the family court after the conclusion of your divorce. Whether it be a dispute regarding the proper calculation of child support or major issues regarding the improper withholding of a child for weekend visitation what we would call post-divorce litigation is all too common in many circumstances. One of the positive aspects of collaborative divorce is that it can focus on getting the agreement right the first time so that there are fewer disagreements and problems in the future that may lead to going back to court.

Collaborative divorces are based on a mutual understanding of the issues at hand and conversation that centers around those issues. When you and your spouse agree to a collaborative divorce you will have all the opportunity in the world to engage in settlement negotiations but will do so in a structured environment like an attorney's conference room. There, you can share your thoughts and concerns on particular issues and receive feedback from your spouse. If it gets to the point where you believe that there are going to be major disagreements, you can adjourn for the day and work in your spare time to come up with counteroffers and proposals that may be more warmly received by your spouse. 

Going down a list of issues with your attorneys present in a neutral location is a bit like mediation. Whereas in a traditional divorce mediation only takes place once or twice during the entire case, you and your spouse may prefer to have these types of negotiation sessions occur regularly throughout the life of your case. Sometimes weekly negotiation sessions like this can be scheduled to allow the two of you to build on the successes of prior sessions. Depending upon your schedule(s) you may be able to settle your case sooner rather than later. I know that this is a concern that many people have heading into a divorce- that the case may take an inordinate amount of time to finish. Collaborative divorces tend to wrap up sooner than traditional divorces because once spouses start to talk through their issues it is usually not difficult to find common ground. 

Once you and your spouse are satisfied with the agreements that you have come up with, those agreements are put into writing and signed off on by both of you. One of your attorneys will draft a final decree of divorce and both sides will have an opportunity to discuss the language used in the order as well as any other issues that may be outstanding. At the end of the case, you and your spouse will sign the final decree of divorce and submit the document to the judge for their signature. Once signed by the judge your divorce will officially be over and you all will be divorced. 

Why collaborative divorce may not work for you and your spouse

Despite the many advantages to a collaborative divorce, you and your spouse may find that the process is not well-suited for you all and your circumstances. First of all, both you and your spouse will need to agree to engage in a collaborative divorce. It is not something that you can decide for the two of you or vice versa. You would both need to collaborate on engaging in a collaborative divorce. This is very important for the two of you to start your case off on the right foot as far as being willing to discuss crucial issues of your divorce together rather than approaching the case from an adversarial position. 

Collaborative divorces are not inexpensive. Just like a traditional divorce, a collaborative divorce is one where there can and likely will be costs that are unforeseen in addition to the normal costs and fees of filing a divorce in Texas. You will still have attorneys to pay for, as well. If your divorce goes from being a collaborative divorce to a traditional, adversarial divorce then you would also need to hire new attorneys since your prior attorney would not be able to represent you any longer in the contested divorce. If you think there is a decent chance that your collaborative divorce could become adversarial, then you are better off proceeding with a traditional divorce. 

A fair settlement is the goal of a collaborative divorce. The process involved encourages discussion, moderation, and seeing things from all perspectives. To avoid s adversarial divorce, it is incumbent on you and your spouse to be able to put aside any differences you may be experiencing and instead focus on the issues of your case to arrive at settlements on the issues that much sooner. The more you focus on your differences, your history, and other elements of a case the more unlikely you are to reach meaningful settlements that can stand the test of time. A traditional divorce puts a lot of the focus of your case on the courtroom and therefore has your mind constantly on the looming specter of going to court to solve your issues. A collaborative divorce is geared towards spouses who communicate with one another, are respectful, and overall want to have a straightforward and fair divorce. 

One of the side effects of this type of settlement negotiation is that you may not be able to receive as much property or the same type of custody arrangements as you would in a traditional divorce. You aren't working to pull one over on your spouse or to extract as much as you can out of him or her in negotiations. This usually means that the two of you will divide your assets more evenly than in a traditional divorce. This makes sense given that it is easier and faster to negotiate an "even split" divorce than to go through a hard-fought negotiation session for you to eke out as much property and time with your children as possible. 

The bottom line for you is that you need to understand all of the issues of your case you must speak with an experienced family law attorney. Nobody wants to be in a position where they feel like they are being taken advantage of. A collaborative divorce may not work well for you if you are alleging fault grounds in the divorce or if acts of family violence or other situations have occurred. Always speak to an experienced family law attorney before beginning your divorce. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family's circumstances may be impacted by the filing of a divorce or child custody case. 

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