Collaborative law or collaborative divorce is an alternative to the traditional divorce process in the court system—it is a process in which spouses hire attorneys to help dissolve the marriage by resolving differences through agreement rather than by litigation in court.
In collaborative law, the spouses try to come to agreements on the division of property, spousal support payments, child support payments, and child custody schedules—rather than the judge making these decisions by court order. Collaborative law is designed to reduce some of the more confrontational, destructive conflict in the divorce litigation process, while offering the spouses greater privacy and confidentiality in their personal lives.
The characteristic elements of collaborative law include:
• a written agreement signed by the spouses and their lawyers that no one will use or threaten to use the court process during the collaborative process
• each spouse has a lawyer and actively participates in all negotiations
• financial and other experts are retained jointly and are prohibited from working for the spouses if the spouses decide to use the litigation process
• neither lawyer can participate in any litigation against the other spouse after working as a collaborative lawyer on the matter
• the lawyers are terminated (“fired”) if the spouses decide to use the litigation process
Many states have laws that define the collaborative law process and give effect to the agreements made by the spouses. These laws are generally located in the state’s statutes—often in the family or domestic relations code.
In Texas, collaborative law is recognized as a legal alternative to traditional divorce litigation. It is governed by the Texas Family Code, specifically under Chapter 15, which outlines the Collaborative Family Law Act. This act allows couples to enter into a collaborative law agreement, where they commit to resolving their marital issues outside of court, with the assistance of their respective attorneys. The key elements of collaborative law in Texas include the signing of a participation agreement by both spouses and their attorneys, agreeing not to litigate or threaten litigation during the collaborative process. Each spouse retains a separate attorney trained in collaborative law, and these attorneys cannot represent either spouse in any subsequent litigation if the collaborative process fails. The process may also involve neutral financial and mental health professionals who are jointly retained and cannot participate in future litigation. If the collaborative process breaks down, both attorneys must withdraw, and the spouses must hire new attorneys for litigation. The goal of collaborative law in Texas is to facilitate a respectful, private, and less adversarial divorce process, allowing couples to reach a settlement that addresses property division, spousal support, child support, and child custody without going to court.
