An increasingly popular method of completing a divorce is through the collaborative process. In a collaborative divorce, parties attempt to set aside their differences and work towards a mutually agreeable completion of their case. Along the way, spouses try to identify potential problem areas and use their negotiation skills to sidestep them. This is done in hopes of completing their case in a cost and time-effective manner.
However, there are also downsides to collaborative divorces. Whether a collaborative divorce is right for you and your family depends upon your circumstances. In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss collaborative divorce. Specifically, whether a collaborative divorce is right for you and your family. If you have any questions about the material contained in today’s blog post, please do not hesitate to reach out to the Law Office of Bryan Fagan today. Our attorneys are experienced in family law. We offer free-of-charge consultations six days per week.
Both spouses work together
The hallmark of a collaborative divorce is you and your spouse working together to achieve success in your case. The common sentiment with divorce is that the process pits spouses against one another. This theme is driven home by images and television shows and movies where spouses are yelling and screaming at each other across the courtroom. Meanwhile, the attorneys are counting their money while the judge furiously bangs on their gavel. If this image hits home, then it is likely you have seen the same television shows and movies as most of us have over the past few years.
Contrast this with a collaborative divorce in Texas. In a collaborative divorce, the emphasis is placed on negotiation and settlement as opposed to litigation. You and your spouse agree to negotiate first and foremost. Negotiation is the key to almost any divorce. However, in a collaborative divorce, this is explicitly the case. Attorneys and clients alike agree to treat collaborative divorces uniquely. As a result, the chances of a settlement in your case are greater than in a traditional divorce based on both negotiation and litigation.
Cooperation
Being able to cooperate with your spouse in a collaborative divorce environment is the key to your entire case. Spouses who can achieve favorable results in a collaborative divorce setting take seriously the responsibility to negotiate with their husband or wife. By setting aside your differences you are acknowledging that there is a fair bit of middle ground in your case. This allows both of you to focus on what brings your case together rather than what separates you.
Of course, cooperation with your spouse is not easy during this period. Do not assume that just because you and your spouse do not see eye to eye much right now a collaborative divorce will be impossible. Rather, you may be surprised to learn that spouses are capable of setting aside their differences for a limited period. Identifying potential areas of compromise is the main goal spouses have before beginning a collaborative divorce. Likely, this requires you and your spouse to take time to talk with one another about the issues of your case.
Remember that cooperation does not mean giving up on your goals. You should identify what goals you have for your case from the outset. That way you can quickly determine whether there is any middle ground to be found when it comes to these subjects. When there is a middle ground that opens the possibility of settlement negotiations within a collaborative divorce. On the other hand, when there is no chance for a settlement that more clearly indicates that a traditional divorce is necessary.
Negotiation
Working your way through a collaborative divorce is like a traditional divorce. The case still begins with a divorce petition having been filed. From there either a waiver of service or an answer must be filed by your spouse. Negotiation is just as important in a collaborative divorce as it is in a traditional divorce. Your ability to act reasonably and with my favorite the best interests of your family and mind will be put to the test. The main difference in a collaborative divorce is that there is an even greater emphasis on negotiation.
Keep in mind that you and your spouse should be willing to negotiate partners in a collaborative divorce. This is not a circumstance where the two of you are concerned about negotiation. Rather, this is a case where your willingness to negotiate is put on full display. Consider that spouses who engage in negotiation during a divorce almost always experience better outcomes. Even though the two of you do not see eye to eye, you still know more about your case than anyone else involved.
As a result, your chances of settling your case successfully increased dramatically. Do not take for granted just how important it is to work with your spouse directly on these subjects. While both of you will have a collaborative divorce attorney that does not mean you should rely primarily on them to perform the basic negotiations in your case. Utilize your attorneys as a resource for information about details on the case. However, the brunt of the negotiation should be performed by you and your spouse.
Avoiding litigation
Litigation refers to utilizing the court to settle disputes in your divorce case. Even though it is expected that you and your spouse will use the court when filing for divorce this does not mean you should accept this as an unnecessary part of your case. You have ample time in a divorce case to work on a settlement. There is a minimum of sixty days between the date on which your divorce is filed and the date your divorce can be approved by the judge. Using this time wisely is a major focus of any divorce.
While going through the litigation process in a divorce should not be seen as a defeat you need to ensure that all avenues are pursued to maximize your chances of avoiding this outcome. As we will see, litigation generally costs more and takes longer to complete than negotiation. Saving money and time are two benefits of a collaborative divorce. Using every opportunity, you have to settle your divorce case means that you can utilize your time and money more effectively elsewhere.
When you emphasize collaborative divorce you do so with the best interests of your child and family in mind. Litigation tends to turn a divorce from an overall collaborative process to one that focuses on deferring to a judge. Using a court is fine when you have no other options to pursue in trying to settle your case. In many other circumstances, however, going through a court ensures a less productive result for your family.
Faster can be better
Speed is not everything when it comes to a divorce. A divorce is not a pleasant process, and most people want to get it over with as quickly as possible. That said, you should not sacrifice speed for results. A divorce that takes three months to complete and where you achieve all your goals is better than a divorce that takes only two months wherein you achieve none of your goals.
All things being equal, however, a faster divorce may work better for your family. A quicker divorce leaves you susceptible to the unanticipated issues in a divorce case for a shorter. This means less time away from your family and away from your work. On top of that, a faster divorce can mean less stress for you and your children. There is so much in a divorce that you cannot control. However, something you can control is your willingness to negotiate. In a contested divorce case, the willingness to meet in the middle with your spouse can save time and help you eliminate problems.
Less Expensive
Additionally, it is said that time is money. If you believe this to be true, then there is an unmistakable relationship between time and money. Since we just established that collaborative divorces tend to be faster it would also hold that collaborative divorces are also less expensive. The main reason for this is that your family law attorney bills by the hour. Billing by the hour means that the more time that is spent in your case the more your case will cost. Conversely, a faster divorce means a less expensive divorce.
The major caveat here is that you should not cut corners or avoid negotiation simply because it saves some money on attorney’s fees. We like to tell our clients that hiring an attorney is a short-term investment into your long-term future. This means that what you pay in attorney’s fees may be small in comparison to what you gain in the negotiation process. This discussion depends upon your specific circumstances. You know what is at stake in your case. Again, if it means securing hundreds of thousands of dollars in community property then a slightly more extensive divorce is not a bad trade-off. Think long-term and consult with your attorney on this.
Well-being of children
If you have minor children involved in your divorce, then the best interest standard rules the day. The best interests of the child’s standard relate to a court looking at a range of different factors in hopes of arriving at a decision that suits your child best. Sometimes in a divorce, it is difficult to discern what is in your best interests versus what is in your child’s best interest. However, just because you want something in the case does not necessarily mean that it is in the best interest of your child.
As such, you need to be sure that the decisions you are making regarding custody, visitation, and conservatorship suit your child’s needs. When you can look at the case from this vantage point it typically results in a better outcome for your children and family overall. Again, you need to weigh your goals in a collaborative divorce against those of your child when considering their best interests.
Power imbalance
If there is a significant power imbalance in the marriage then a collaborative divorce may not be for the best. Consider this example which involves a former client of the Law Office of Bryan Fagan. A few years ago, our office represented a local mother in a divorce case. She was a stay-at-home wife and mother who never worked outside the home. On the other hand, her husband was a successful businessman. He managed the finances of the family. Our client never thought about the significance of this until the time of her divorce.
What ended up happening is that the husband was very much in favor of a collaborative divorce. He was directly paying our attorney’s fees on behalf of his wife. While this seems like a magnanimous gesture, it was hindering the case. In exchange for paying his wife’s attorney’s fees, the husband was unwilling to provide any documentation or information on the business. This includes helping us understand the value of the business or even when the business was incorporated. These are important questions when it comes to determining the overall value of the business and community estate.
Once it became obvious that this gentleman was unwilling to cooperate with us we had to have a conversation with him directly. He ended up hiring his attorney and proceeding with the case. However, the case truly took on a collaborative outlook with both parties being willing to negotiate with one another. All that was needed was for the husband to gain the advice of an experienced attorney. Eventually, he began sharing information about the business and we were able to settle the case successfully.
Costly if the case drags on
Just like any divorce case, a collaborative divorce can last for an indefinite duration if the parties are unable to settle. Remember, the whole point of a collaborative divorce is to focus on negotiation. Once negotiations break down the case becomes like any other divorce. This means that a lack of communication, difficulty in obtaining a court date, or any other reason in between can all cause the case to stall. Then you run into issues regarding increased cost and stress in the case. If you identify that your collaborative divorce is not proceeding as planned, then it may be time to switch tracks and plan for a more contested case.
No guarantee of settlement
Just because your case begins as collaborative or even uncontested does not mean the case will stay that way. Once you encounter an issue that cannot be settled your case proceeds under a contested heading. This means that litigation is possible. We should not presume that because you began a collaborative divorce the case must end that way. Rather, you need to take seriously the responsibility to negotiate your way through the case. Once it becomes apparent that a change is needed in the format of the case you should be willing to make that change and deal with the consequences directly.
Full and honest disclosure of relevant information
Again, sharing information in your collaborative divorce is essential. Once it becomes apparent that you or your spouse are hesitant to do so then the case ceases to be collaborative. In that situation, you have a contested divorce on your hands. There is nothing wrong with this necessarily. However, if the case will once again become collaborative is a mistake. It is better to assume that your case is now a contested divorce matter and needs to be handled as such.
Emotional challenges
Sometimes collaborative divorces bring about significant emotional challenges. You may assume, for example, that your divorce is going to be free from acrimony or strife. However, just because it is called a collaborative divorce does not mean that your divorce will be free from negotiation or even argument. Understand that collaborative divorces have the same high stakes as any divorce. The better you prepare for this eventuality, the better your case will likely proceed. Having an attorney there to help guide you can blunt the full impact of negative emotions in a divorce.
Final Thoughts on Collaborative Divorce
Collaborative divorces are a welcome change from a standard divorce in Texas. That does not mean, however, that a collaborative divorce is free from disagreement or the potential for litigation. Rather, it is better to identify potential problem areas and focus on those from the beginning of your case. This way you can determine if your case is well suited for the title of a collaborative divorce.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan 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. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
