The Collaborative Divorce process is an excellent way to handle most divorce cases. The process is private, puts the interests of children at the forefront, and creates a negotiated settlement between the divorcing spouses that focuses on the interests of both parties.
Before the Collaborative Divorce process is started, a Collaborative Divorce participation agreement must be signed by the participants in the case, including their attorneys signing it to acknowledge their representation of the participants. The Texas Family Code provides for the minimum conditions of the participation agreement, including:
- describing the scope of the family law matter (divorce, modification, suit affecting parent-child relationship [such as when two parents have not been married but need to resolve parenting time and child support issues], prenuptial agreement, or marital agreement)
- identifying the collaborative lawyers representing each party
- and a statement that the parties’ intend to resolve the matter through the Collaborative Divorce process rather than going to court
These conditions are designed to ensure that there is a written record of the parties’ intention to participate in a Collaborative Divorce process under the rules as set out in the Texas Family Code. These rules were developed to assure that the Collaborative Divorce process is to protect the parties because there is a risk to negotiating a settlement outside the court framework because there is no judge forcing the parties to follow the rules.
Requirements of the Participation Agreement
A Collaborative Divorce participation agreement must:
- be in a record;
- be signed by the parties;
- state the parties’ intent to resolve a collaborative family law matter through a collaborative family law process under this chapter [Chapter 15 of the Texas Family Code];
- describe the nature and scope of the collaborative family law matter;
- identify the collaborative lawyer who represents each party in the Collaborative Divorce process; and,
- contain a statement by each collaborative lawyer confirming the lawyer’s representation of a party in the Collaborative Divorce.
A Collaborative Divorce participation agreement must also include provisions for:
- suspending intervention by the court in the Collaborative Divorce matter while the parties are using the collaborative family law process; and
- unless otherwise agreed in writing, only engaging jointly retained professionals, experts, or advisors who will serve in a neutral capacity.
The parties may agree to include in a collaborative family law participation agreement additional provisions not inconsistent with this chapter.
Supplements and Additions to the Participation Agreement
Parties are, however, free to supplement the required provisions under this chapter with additional terms that meet their particular needs and circumstances as long as they are not inconsistent with the fundamental nature of the Collaborative Divorce process. For example, they may define the scope of the voluntary disclosure, or they may provide for broader protection for the confidentiality of communications in the Collaborative Process than the privilege against disclosure in legal proceedings. For example, before the terms of an employment contract are disclosed the company that employes the party who has the employment contract may require that everyone in the Collaborative Divorce sign a confidentiality agreement that the terms of that employment contract will be kept confidential. Supplements to the Participation Agreement may provide for the engagement of additional jointly retained neutral experts to participate in the process, such as when partway through the process it is determined that a business appraiser is going to be needed. The agreement may also provide that such experts as a residential appraiser may be allowed to testify at trial if the Collaborative Divorce process terminates and the case goes to litigation. There are also common provisions that if the process does terminate, litigation may not be instituted for a short period of time to enable the parties to secure new counsel and enable their new counsel to “get up to speed” on the case before any action such as hearings or depositions are scheduled.
Typically, at the first joint meeting, the parties will sign a participation agreement prior to any substantive issues are discussed with anyone except between the parties and their own lawyers. The signing of this agreement starts the Collaborative Divorce process and the participation agreement serves as a guidepost for the process to help keep the matter out of the courtroom.
The Law Office of David S. Bouschor is an advocate for Collaborative Divorce. Not every case can be handled with the collaborative process but it should be the starting point for divorcing parties. David Bouschor can, during an initial consultation, help to determine if the case can be handled collaboratively. For more information about Collaborative Divorce, call (940) 202-8323 or contact us here.