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Houston Divorce & Family Law Attorney Richard J. Tholstrup

The Tholstrup Law Firm, L.P.

440 Louisiana, Suite 800
Houston, Texas 77002
    2002 Timberloch, Suite 200
The Woodlands, Texas 77380
Phone: 713.225.1280 Fax: 713.225.1344
E-Mail:  tholstru@sbcglobal.net
Home Page:  www.tholstruplaw.com

Family Law Attorney Richard J. Tholstrup

COLLABORATIVE DIVORCE

For more detail on the following, simply click on the issue

1. Relevant Texas Family Code Sections & Leading Case Law
   A. TEXAS FAMILY CODE § 6.603
   B. TEXAS FAMILY CODE § 153.0072

2. What is Collaborative Law/a Collaborative Divorce?
3. When is a Collaborative Divorce appropriate?
4. When may Collaborative Divorce be inappropriate?
5. What are the benefits of a Collaborative Divorce?
6. What is the downside of a Collaborative Divorce?
7. What happens when the parties to a Collaborative Divorce cannot reach a solution to all of the issues/the process goes bust?
8. How do I get my spouse to buy in to the concept/find his/her lawyer who practices Collaborative Divorce?
9. The concept of Collaborative Divorce is relatively new. What is going on with Collaborative Divorce in other areas of Texas, the U.S.?
10. What are the Characteristics of Effective Collaborative Divorce Participants?
11. What are the Expectations of Conduct in Collaborative Divorce?

1. Relevant Texas Family Code Sections & Leading Case Law

   A. TEXAS FAMILY CODE § 6.603 - COLLABORATIVE LAW

      (a) On a written agreement of the parties and their attorneys, a dissolution of marriage proceeding may be conducted under collaborative law procedures.
      (b) Collaborative law is a procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate. The parties' counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement.
      (c) A collaborative law agreement must include provisions for:
         (1) full and candid exchange of information between the parties and their attorneys as necessary to make a proper evaluation of the case;
         (2) suspending court intervention in the dispute while the parties are using collaborative law procedures;
         (3) hiring experts, as jointly agreed, to be used in the procedure;
         (4) withdrawal of all counsel involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute; and
         (5) other provisions as agreed to by the parties consistent with a good faith effort to collaboratively settle the matter.
      (d) Notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule or law, a party is entitled to judgment on a collaborative law settlement agreement if the agreement:
         (1) provides, in a prominently displayed statement that is boldfaced, capitalized, or underlined, that the agreement is not subject to revocation; and
         (2) is signed by each party to the agreement and the attorney of each party.
      (e) Subject to Subsection, (g) a court that is notified 30 days before trial that the parties are using collaborative law procedures to attempt to settle a dispute may not, until a party notifies the court that the collaborative law procedures did not result in a settlement:
         (1) set a hearing or trial in the case;
         (2) impose discovery deadlines;
         (3) require compliance with scheduling orders; or
         (4) dismiss the case.
      (f) The parties shall notify the court if the collaborative law procedures result in a settlement. If they do not, the parties shall file:
         (1) a status report with the court not later than the 180th day after the date of the written agreement to use the procedures; and
         (2) a status report on or before the first anniversary of the date of the written agreement to use the procedures, accompanied by a motion for continuance that the court shall grant if the status report indicates the desire of the parties to continue to use collaborative law procedures.
      (g) If the collaborative law procedures do not result in a settlement on or before the second anniversary of the date that the suit was filed, the court may:
         (1) set the suit for trial on the regular docket; or
         (2) dismiss the suit without prejudice.

   B. TEXAS FAMILY CODE § 153.0072 - COLLABORATIVE LAW

      (a) On a written agreement of the parties and their attorneys, a suit affecting the parent-child relationship may be conducted under collaborative law procedures.
      (b) same as § 6.603 from here on.

2. What is Collaborative Law/a Collaborative Divorce?

Collaborative Divorce is conflict resolution, not conflict-free resolution. It requires the ability and willingness to value other things more than revenge or vindication.

Collaborative Law involves interest-based negotiation through “four-way” meetings, meetings of the two parties and their attorneys. In the family law context, Collaborative Divorce is a process that seeks to create an environment in which the parties, with the aid of their attorneys, can address the issues presented as problems to be solved, rather than contests to be won. It is sometimes referred to as “Divorce without Disaster”.

Collaborative Divorce is a procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage disputes on an agreed basis without resorting to judicial intervention except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate. The parties' counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement.

3. When is a Collaborative Divorce appropriate?

• For divorcing couples who want an effective divorce even when they could not be effectively married
• For divorcing couples who want results more than revenge, and/or want to speak to each other after the divorce, particularly where children are involved
• When privacy of the dissolution is paramount to one or both of the spouses in their work and/or social lives after the divorce
• Significant separate/community property and division is complex

4. When may Collaborative Divorce be inappropriate?

• The marriage has had a history of domestic violence or abuse
• One party has an untreated or unacknowledged substance abuse or mental problem

5. What are the benefits of a Collaborative Divorce?

• Disputes are resolved in private/skeletons are not paraded in the courtroom
• Scheduling and speed of resolution is controlled by the parties, not the court or the attorneys involved
• Chaos/hostility between the parties and/or their children is reduced
• The process results in better communication between the parties
• The monetary and emotional costs of divorce are significantly reduced
• The settlement options are endless
• Control of the process by the parties versus control by the judge
• Safety in decision making process/provides closure

6. What is the downside of a Collaborative Divorce?

• Does not allow for getting your “day in court” for public vindication of your role in the dissolution and/or public humiliation of your spouse for his/her role in the dissolution
• Requires civility between the parties/attorneys
• Does not allow for getting even/beating the other side down/being a “victim”
• Forces proximity/interaction between spouses
• Requires decision making
• Requires the parties to work through their emotions which can be painful

7. What happens when the parties to a Collaborative Divorce cannot reach a solution to all of the issues/the process goes bust?

The linchpin of Collaborative Divorce is that there is a penalty to the participants for letting the process go bust and having the divorce proceed to litigation. The penalty is that the lawyers in the collaborative process must withdraw/be dismissed from the case and new lawyers have to be retained for litigation. TEXAS FAMILY CODE §6.603(c)(4). This requirement provides incentive to make the process work, to both the parties and the lawyers involved. If an attorney will not execute a Collaborative Divorce Agreement that includes this provision, they are not committed to the Collaborative Law process.

8. How do I get my spouse to buy into the concept/find his/her lawyer who practices Collaborative Divorce?

There are a number of resources available through an internet search for educating oneself or one’s spouse on the concepts and advantages of Collaborative Divorce. An excellent, easy reading book on the subject is Divorce without Disaster by Dallas family law attorney Janet P. Brumley which is available in bookstores or from on-line sources such as Amazon.com. There are also a number of resources for finding a lawyer who truly practices (some profess to, but shun the crucial tenant/commitment by avoiding the execution of the collaborative agreement) Collaborative Divorce online or by referral.

9. The concept of Collaborative Divorce is relatively new. What is going on with Collaborative Divorce in other areas of Texas, the U.S.?

The hallmark of Collaborative Divorce is that the parties and attorneys leave their guns at the door which goes against the long and colorful culture of litigation in Texas. Texas however was the first state in the U.S. to adopt a Collaborative Divorce statute in 2001.

Collaborative Law was the brainchild of Minnesota family law attorney, Stuart Webb, in 1990. According to Webb, at this time, Collaborative Divorce is practiced in approximately 30 states in the U.S. and 6 Canadian provinces, generally focused in the larger cities. In Texas, family law lawyers in Dallas are generally the leaders in promoting the use of the Collaborative Divorce process.

10. What are the Characteristics of Effective Collaborative Divorce Participants?

Effective Collaborative Divorce participants generally exhibit some or all of the following list of characteristics or desires:

• want to protect everything–children, relationships, money, time and privacy
• tend to be intelligent and educated, and have a higher than average emotional IQ
• want a divorce that is “tailor-made” for their circumstances, not an “off-the-rack,” ill-fitting form used by everyone (and fitting no one very well)
• want results more than revenge
• want to be participants–not victims–in the dissolution of the marriage
• want to assure themselves that nothing happens unless they agree to it
• want control over the scheduling of events of divorce
• want to retain some dignity through the process of divorce
• want to end the relationship as positively as possible
• see the big picture

From Divorce without Disaster, Collaborative Law in Texas, by Janet P. Brumley, 2004

11. What are the Expectations of Conduct in Collaborative Divorce?

• Participants will focus on the future and avoid unnecessary discussions of the past. Participants will focus on resolving conflict and not on assessing blame.
• Participants will listen carefully to the goals that begin every four-way meeting, and will take actions and make decisions in furtherance of the shared goals.
• Participants will address others in a courteous manner and tone. Participants will not interrupt when another person is speaking. Participants will avoid sarcastic, contentious, critical, defensive or judgmental communications/comments.
• If a participant feels progress has ceased or that he or she is about to lose control and say or do something to impede progress, that participant will call for a break. If the break is insufficient to calm the affected participant, the meeting may be terminated.
• Each participant will speak only for himself or herself. Participants will use “I” instead of “you” sentences.
• Participants will express their true interests.
• Participants will be patient with each other and their lawyers. All participants will assume that each participant is acting in good faith and realize that everyone does not move at the same pace. To pull together, each participant must sometimes accommodate by slowing down. Delays in the collaborative law process can happen with everyone acting in good faith.
• Participants will follow the agenda for each for-way meeting. If there are other topics that a participant wants to address, he or she will ask that it be included in the agenda for the next four-way meeting.
• Participants will be honest.

(Courtesy of the Dallas Alliance of Collaborative Family Lawyers, 2003)