Collaborative Law FAQ
1. What types of cases are appropriate for collaborative law?
Most Collaborative Law cases involve divorce issues. However, the process can also handle pre/post marital issues, custody cases, modification cases and paternity cases. Any case involving a family law issue may be resolved by using Collaborative Law.
2. What if the other party already has a lawyer?
If the other party has already hired an attorney, let your attorney know. The attorneys can talk and discuss using the Collaborative Law process for the case. If the case has already been filed with the court, then a notice can be filed with the court that you are using the Collaborative Law process. Then case will not be placed on the court’s litigation docket.
3. How do I get the other party to consider collaborative law?
The absolute best thing that your spouse can do is to get educated about the Collaborative Law process. Our links page provides various links to websites designed to educate people about the Collaborative Law process. I would also recommend that your spouse go for a consultation with a Collaborative Law attorney. It is very important that the attorney consulted has actually received formal training in Collaborative Law. Sometimes the process breaks down if an untrained attorney attempts Collaborative Law.
4. How do I get started?
If you think Collaborative Law may work for you, these are the steps to take:
- Talk with your spouse about Collaborative Law.
- Each of you then selects his/her own attorney trained in Collaborative Law.
- Each of you meets first with your own attorney to discuss the options.
- Both attorneys will then discuss how to proceed collaboratively.
- If both of you agree to proceed collaboratively, all parties and attorneys meet jointly to discuss the guidelines and sign a participation agreement.
5. Is Collaborative Law less expensive?
That depends on how you define “cost.” If you are concerned about costs such as a damaged relationship with the other person, trauma to the children, loss of privacy, etc., then the collaborative process is absolutely less costly. If the concern is the monetary cost related to professional fees, then Collaborative Law may or may not be less expensive than litigation. Many times it is often less expensive than litigation, but Collaborative Law is not bargain-basement law. Collaborative Law provides you with more value for the money spent, but it may or may not be less expensive in monetary terms. In the litigation process, money is spent on winning a court battle. Once the battle is won or lost, the litigant can only go home with the proceeds that he or she was awarded in court, after expenses. In Collaborative Law, the focus is on complete solutions your family’s problems, and all expenses are focused in that direction. If expert advisers are needed, money can be saved by the hiring of one joint neutral expert instead of each party hiring his/her own expert to prove a case in court. For example, it may be expensive to pay the up-front costs of a neutral financial adviser. However, one is much less costly than two as would be used in traditional litigation. Additionally, that money is spent to help the family, not simply to build a court case. The same can be true for the neutral mental health service providers, counselors, appraisers and other financial experts. The neutral financial and mental health experts are part of a team trying to find the best solution. They are not part of the litigation process trying to prove the other side wrong. As with any family law matter, time involved – and therefore, the cost – depends on the parties’ cooperation, as well as the complexity of the issues. Collaborative participants have more control over the time factor than parties in a court case and can avoid a lot of expense.
6. What if the other person isn’t honest?
Just as in litigation, there can be no guarantees that the other party will fully disclose everything. While this can’t be completely prevented, the collaborative agreement helps guard against it. The collaborative agreement requires a lawyer to withdraw if his/her client is being dishonest, or participating in the process in bad faith. It is in the best interest of all parties to remain honest and allow the process to work. cooperate with the full disclosure process.
7. What happens if settlement is not reached?
The spouses and attorneys are bound by a written pledge not to go to court over any contested issue. In the rare instance when the parties cannot reach settlement with the help of their collaborative lawyers, they may consider alternative ways to resolve their arguments, such as mediation, more neutral experts, or arbitration. If one or both parties wish to discontinue the collaborative process, both attorneys are legally obligated to withdraw from the case. This means that both spouses have an incentive to settle their case collaboratively in order to avoid having to hire new attorneys and begin a traditional divorce process through the court system, adding time and expense to the divorce.
8. Why do the attorneys withdraw if the process fails?
The Texas Family Code requires that attorneys involved in a collaborative case withdraw from representation of their respective clients if an agreement cannot be reached and one party elects to “opt out” of the process. It is a fundamental element of Collaborative Law. The cost and inconvenience of hiring new attorneys and going to court provide huge incentives for the parties to stay with the process and reach an agreement. The process rarely fails.