Collaborative Family Law begins with the premise that the courthouse is not the best place for families to resolve disputes. Generally stated, Collaborative Family Law involves (1) a pledge not to go to court to resolve differences, (2) full disclosure and transparency of process, and (3) interest-based negotiation.
Pledge not to go to court to resolve differences ....
Specifically, in the collaborative process, spouses and their attorneys contractually agree the case will be resolved outside of the traditional litigation system, and, that under no circumstances, will the parties go to court. If the case does not settle through the collaborative process, the lawyers for both spouses must withdraw from the case and the parties must hire litigation lawyers.
Full disclosure and transparency of process ....
A written contract is signed by the collaborative attorneys and parties at the beginning of a collaborative case which is called the Participation Agreement. In the Participation Agreement, the collaborative attorneys and parties commit that during the negotiation process, everyone will (1) be respectful, (2) act in good faith, (3) provide information completely and voluntarily, and (4) place the interests of the children first.
The collaborative process recognizes that honesty and full disclosure of relevant information is critical to the successful outcome of a Collaborative Family Law matter.
Interest-based negotiation ....
The goal of the attorneys and parties who have selected the collaborative process is to achieve a reasonable, mutually-respectful agreement. A “team approach” is used to achieve a settlement that satisfies the primary interests of the entire family. In other words, the parties strive for a “win-win” solution.
Negotiations and communications take place in four-way settlement meetings. The more complex the issues or personalities are in any particular case, the more four-way meetings are needed. Although there is no way to predict how many four-way meetings a particular case may need, the general rule is that a less complex case may require only two to four meetings; a more complex case may require seven to ten meetings.
What is the Framework for the Collaborative Family Law Process?
Determining the client’s goals and interests ....
In the collaborative process, time is spent distinguishing between a party’s fundamental “interests” and a party’s bargaining “positions”. “Interests” are a party’s goals, needs, values, priorities, concerns and fears. The goal is to help the parties see what they have in common and to understand and acknowledge the other party’s interests. In interest-based negotiating, understanding what matters are of special significance to a party assists in creative problem-solving. The hope is that the parties can then achieve their best possible outcome.
Gathering information ....
The collaborative process requires gathering, organizing, and analyzing information. Information is exchanged voluntarily. The parties may prepare an individual Sworn Inventory and Appraisement or may prepare a joint Sworn Inventory and Appraisement. In limited instances, the parties may agree to exchange more formal discovery.
The use of neutral, agreed upon allied professionals, or “experts” may assist with information gathering. Appraisers, financial professionals, child specialists, and other professionals may help the parties with information relevant to the case.
Creating settlement options ....
After gathering, organizing, and analyzing information, time is spent looking at all possible options for settlement. Various choices or options are developed by considering what the law provides, what the real world provides, and what the clients provide. Brainstorming all possible options ensures that the choice the parties make is what they perceive as the best possible outcome.
Evaluating settlement options ....
When the parties are satisfied that all possible options have been developed, the Collaborative Family Lawyers assist the clients in evaluating the options, taking into consideration how the options meet the clients’ interests and goals. The parties and lawyers work on a settlement model.
Negotiating a settlement ....
This final stage focuses on determining which options for settlement best serve both parties’ interests and common goals. The goal is the achievement of the best possible outcome for both parties and any children of the marriage.
Normally, the collaborative attorneys present their clients a copy of a Participation Agreement to review and discuss. Later, a four-way meeting is scheduled for both parties and attorneys where, as a group, the collaborative process is reviewed and discussed, and the Participation Agreement is reviewed, discussed and signed.
Initiating the proceeding ....
A Divorce Petition must be filed as in the Litigated Family Law Process. In some instances, the parties file a Joint Divorce Petition to initiate the divorce case. In either event, the preference is for the parties to discuss and to agree whether one or both should file the Petition. In some instances, a party will have initiated a divorce proceeding prior to the parties deciding to proceed collaboratively.
Four-way meetings ....
The first four-way meeting generally is used to execute the Participation Agreement, discuss the parties’ interests and goals, and to deal with immediate interim or temporary issues.
Subsequent four-way meetings are used to resolve other temporary issues that arise, to discuss information gathering, to generate settlement options, to identify similarities and differences, to brainstorm, and to reach an agreement. As stated earlier, there is no way to predict how many four-way meetings a particular case may need. The general rule is that a less complex case may require only two to four meetings; a more complex case may require seven to ten meetings.
Finalizing the divorce ....
A collaborative family law suit concludes by agreement of the parties. When an agreement is reached, a Divorce Decree and other closing documents are prepared, exchanged, approved and signed. One party and his/her lawyer appear in front of a judge, obtain the divorce, and obtain the judge’s signature on the Divorce Decree.
What Distinguishes Collaborative Family Law from Litigated Family Law?
Collaborative Family Law and Litigated Family Law have some significant differences. For a side-by-side comparison of the Collaborative Family Law Process and the Litigated Family Law Process, please review the checklist titled Litigation Process vs. Collaborative Process Comparisons.
The most notable distinguishing features of the collaborative process are that the collaborative attorneys must withdraw if a party opts to litigate their family law matter, and the use of four-way meeting to facilitate the process and achieve the best possible outcome for all involved.
Individuals attracted to the collaborative process tend to be people who desire a peaceful, amicable solution more than winning at all costs, who wish to avoid litigation, who express respect and/or trust for their spouse, and who have a strong commitment to a satisfying and successful parenting relationship with the other parent post-divorce.
People who suffer from serious psychiatric problems, who actively abuse drugs or alcohol, who are struggling with active domestic violence/abuse problems, who are unwilling to take responsibility for their choices, who are unwilling or unable to follow-through on commitments, and who possess dishonesty of purpose and fraud may not be good candidates for the collaborative process. If one of these situations exists, a client should discuss the specifics of the situation with the attorney to determine whether the collaborative process would work.
What are the Key Benefits of Proceeding Collaboratively?
Process ....
The collaborative process affirmatively seeks to create a safe environment where both parties feel respected and in control of their lives. In this safe, respectful, comfortable environment, the parties and attorneys work toward a resolution of all conflict.
Risk ....
The collaborative process is completely voluntary; nothing happens without the full participation and agreement of both parties. The parties retain control of the outcome.
Privacy ....
The collaborative process maintains the parties’ privacy by not airing differences at the courthouse which is a public forum.
Cost ....
All legal expenses are discussed and agreed upon. Legal resources and expenses are used more efficiently because 100% of everyone’s time, money and creative energy is spent on settlement efforts.
All of the attorneys at Ausley, Algert, Robertson & Flores, LLP have been trained in the Collaborative Family Law process and have handled numerous collaborative cases.
Thomas L. Ausley Named in "The Best Lawyers in America, Family Law Section" since 1987; board certified Family Law (1980) and Civil Trial Law (1982) by Texas Board of Legal Specialization.
Kristen A. Algert Helping couples maximize their options and maintain their dignity during divorce; board certified Family Law (1997) by Texas Board of Legal Specialization.
Eric Robertson Named in "The Best Lawyers in America Family Law Section"; board certified Family Law (1997) by Texas Board of Legal Specialization.
Kelly Ausley-Flores Assisting her clients through the difficult process of divorce by putting the clients’ needs first; board certified Family Law (2000) by Texas Board of Legal Specialization.
JoAl Cannon Sheridan Combining legal experience with a sensitivity to often emotionally difficult family law matters is essential to providing the best representation for her clients.
Kelly Caperton Member of the State Bar of Texas (2006), the American Bar Association, the Family Law Section of the State Bar of Texas, the Austin Bar Association (Family Law Section), and the Collaborative Law Institute of Texas.
