Did you know that there are actually two “models” that lawyers can use when practicing family law? One is the traditional litigation model and the other is the collaborative law model.  Throughout the United States, even in states which allow for the collaborative law model, lawyers have primarily focused on the litigation model, but in recent years, more and more family law lawyers are exploring the collaborative law model and finding it to be a successful alternative to litigation in order to resolve family law disputes.

What is the difference between the traditional litigation model and the collaborative law model? When conducting a family law case in a litigation format, the parties are typically guarded, strategic, and possibility secretive and deceptive.  This process is typically past-focused with clients attacking each other with positions rather than focusing on their interests.  The lawyers, or even the Court, become the arbiters of the parties’ disagreements.  Sadly, there is constant blame and fault-finding rather than true problem solving.  The parties often leave the litigation process feeling defeated, alienated from one-another, and scarred.   How are parties, especially with children, supposed to move forward after such a battle?  It’s possible, but we believe there is often a better way to work through your family law issues.

In the collaborative law model, the process is future focused; therefore, the parties focus on what they want for themselves and for their children down the road.  Communication is open, honest, and shared, and there is no fault finding and blaming.  In fact, one of the most attractive aspects of collaborative law for many parties is the fact that it is conducted in private with their lawyers, as well as neutral professionals, who assist the parties in reaching a settlement agreement outside of court.  Collaborative lawyers are trained in interest-based negotiation and the parties work with their lawyers to understand the legal consequences for themselves and the other party in order to minimize the possibility of future conflicts.   Furthermore, the collaborative law process gives clients the ability to move as fast or as slow as necessary thus, allowing the parties to emotionally and/or financially deal with the issues at hand so that when all is said and done, the parties have a positive relationship, especially where there are children involved.  

Why aren’t more lawyers talking about collaborative law? Well, we all know that lawyers can be stubborn and set in their ways.  Can we blame them?  Law school doesn’t teach them to look out for the best interests of a family…it teaches them to litigate…to fight…to win!  And, just in case you didn’t already know this, no one wins in family law.  So, while we can’t make family law attorneys desire a better way for their clients, we can educate our community so that they know to ask their lawyers for an alternative solution to litigation.  In time, this demand from our community will compel attorneys all-around to consider and implement this alternative way to practicing family law.

Is the collaborative law model for everyone? No, not necessarily.   For those parties who know, without a shadow of a doubt, that their family law matter is uncontested, and will remain uncontested, the litigation process may be simpler and more appropriate.  Additionally, collaborative law may not be appropriate in cases involving extreme domestic violence or extreme mental illness.  Contact a collaborative law professional to discuss any specific concerns you might have in this regard.

To learn more about collaborative law, please visit the Collaborative Law Institute of Texas website at http://www.collablawtexas.com.

We would appreciate any effort on your behalf to spread the word about collaborative law in our community.  Feel free to forward this information to a friend or family member who may be looking to pursue a divorce or other family law matter in Texas so that they are aware of all options available to them.

The time has clearly come for lawyers to begin to emphasize their role as mediators, conciliators, and peacemakers–as counselors for what is right, not merely advocates for what is legally possible. Lawyers must begin to take advantage of alternatives to litigation for dispute resolution. … Lawyers need to remind themselves that the courtroom is often not a place conducive to peacemaking or conflict healing, yet peacemaking and conflict healing are first obligations of our profession.

North Carolina Supreme Court Chief Justice James G. Exum, Jr.

Currently, the law under Section 153.001 (b) states that “[a] court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.”

An Obligee currently has a remedy:  file an enforcement action if the Obligor is delinquent for any period of time or contact the Attorney General (“AG”) to begin its proceedings.  Certainly, this process could be made easier than it already is which could alleviate the delay in going through the Attorney General’s (“AG”) office or the expense of hiring a lawyer.  There are probably several things that could be improved here that would help Obligee to receive funds sooner and alleviate the burden on the State.  Perhaps an improvement would be that there is a blanket no cost of court to the Obligee to file in the civil courts (in order to obtain a faster remedy than the AG’s office) or attorney’s fees are automatic at the time of Temporary Orders if there is a showing of nonpayment that is purposeful, etc.

Certainly, an Obligee could deny access (because of arrearages) and the remedy for the Obligor is file a motion for enforcement.  Now, we all know that courts frown on the denial of access as well as an Obligor’s refusal/failure to pay child support.  We strongly caution clients against denying access due to lack of support and instead encourage them to file an enforcement action or go through the AG’s office.

Preventing access because the Obligor is not paying support is (in my opinion) very problematic for the many what ifs and scenarios that could be imagined:

1. WHAT IF—the Obligor is laid off (in this economy this is not too hard to imagine) and although receives unemployment, it runs out and he/she is unable to find work (sounds hard to imagine but again, it’s a possibility).  Should in this case, the children not see their parent?
2. WHAT IF—the Obligor becomes disabled and although he/she attempts to collect social security, the attempt takes a year or more and therefore cannot provide support in the interim b/c he/she can barely provide for him/herself?  Should in this case, the children not see their parent?
3. WHAT IF—the Obligor is terminally ill, lost his job, doesn’t have time to file for unemployment, etc.  Should in this case, the children not see their parent?
4. WHAT IF—the Obligor has mental/emotional issues that do not rise to the level of affecting the children but prevent the Obligor from obtaining/sustaining employment?  Should in this case, the children not see their parent?
5. And there are probably a hundred more scenarios . . .

Just a consideration here, but if an Obligor does not pay BUT still takes the children pursuant to at least a standard possession schedule, doesn’t that help the Obligee out monetarily?  The Obligee doesn’t have to provide food, care, shelter, etc. for the time that the children are with the other parent.

Another consideration is, if there is an automatic suspension of possession, what happens if the Obligor IS so destitute that he or she cannot afford to hire a lawyer to reinstate his/her possession?  Should the children not see their parent with whom they’ve had a relationship because the Obligor cannot afford legal assistance?

I would fear the impact on children if they could not see their parent, not because of a true danger to the children, but because of money.  The impact on children could be severe—you could only imagine how awful it could be for little ones who have had a continuing relationship with their parent to suddenly not see him/her.  This truly, although I’ve written it last, is the most important, most severe, most dangerous impact if the law is changed to permit a denial of access based on nonpayment of support.

Of course, both parents should help to support their children.  And, of course, we need to hold Obligors accountable.  If/when we improve the system (as there are always improvements that can be made in any system), we need to make changes that benefit the little ones that are ones suffering the most through the conflict.

When you file for divorce, you have options:

1. the kitchen table approach (pro se)
2. one party hires one lawyer and the other pro se
3. collaborative law
4. litigation

Kitchen Table Approach: Many these days will be seeking to file and complete the divorce themselves while sitting across the kitchen table from each other.  If the parties have agreed on conservatorship and possession of the children and have decided how they want to divide their property and assets, then pro se (without an attorney) parties may very well be able to successfully navigate the divorce process.  Often this will be the least expensive method for parties if both husband and wife are knowledgeable about Texas laws regarding rights, duties, possession, and support of children and if the parties understand their property and debts.  The parties must be careful before attempting this option to make sure they understand what they are agreeing to.  The Texas Young Lawyers Association has an online printable guide of the divorce process with forms–http://www.tyla.org/pdfs/2005ProSeDivorceENGLISH.pdf.  Note that this guide is a 2005 printing and will not have changes in the law since the time of its publication.

One Attorney: It is possible that one attorney, hired by one party, can assist the parties through the divorce process.  It is important to remember that only one party can be represented by the attorney and that attorney cannot represent both parties and cannot offer legal advice to the unrepresented party.  The unrepresented party must be careful before attempting this option to make sure that he or she understands the process, legal terms, and ultimately what is agreed to.  This option can be less costly because only one lawyer is being paid.  Where this process can be costly is when the unrepresented party doesn’t understand what he or she may be giving up and gives more than the party would have if he or she had been represented.

Collaborative Law (CL): Around the water cooler, I hear a great deal about the CL method being more expensive than other methods.  While it certainly may be more expensive than the Kitchen Table Approach or an option with one attorney, there is no doubt that there are many cost saving benefits to CL.  I often relate the divorce process to a three-legged stool—each of the legs containing an aspect of the process.  One leg being the emotional aspect, another the financial aspect, and the third the legal aspect.  These legs are equally important and if one is broken, the stool falls.  So it is not exactly fair to look at the CL process solely from the financial aspect—yet, we find that the CL process is far more cost-effective than a highly litigated case.  And parties do not have to walk into this option being 100% agreeable.  In fact, we find that most folks enter the CL process with the same fears, anxieties, stressors, and upsets with which they would enter the litigation process.  In the end, when the parties complete the CL process, we find that costs are preserved for all three legs of the stool.  For more information on collaborative law, visit http://www.foxlawtexas.com/family_law/collaborative_law.php.  Preserving these aspects divorce is priceless.

Litigation: A litigated divorce is a costly divorce.  Sometimes this option is the only option.  When the parties cannot work together to figure out what is best for their family, then they must leave it for the court to decide.  Often the process involves discovery, hearings, third party involvement such as a guardian ad litem (GAL) and/or psychologists, and ultimately a final trial.  All parts of this option, involve multiple hours of work on the part of the attorney and the client.  The client will be asked by the attorney to help with gathering documents for responding to discovery; the client may be ordered to meet with psychologists and/or GAL for child custody recommendations; the client will need to meet with the attorney to prepare testimony for depositions, hearings, and/or trial.  All of this time spent by the client on his/her divorce case, means hours away from work, from their children and from taking care of their health.  Therefore, there is not just a financial cost related to paying the attorney, the cost of a litigated divorce runs much deeper and will affect all aspects of a clients life.  Now, while I often say that the majority of litigated cases settle, the parties often do so only after working through the litigated process and only after spending great amounts of money on attorneys and away from work and their families.  While our firm litigates many cases a year, we counsel our clients to consider attempting to communicate with their spouses to reach a resolution.  Sometimes, however, the other party despite repeated efforts is just not willing or ready to work together and therefore, litigation is the only option.  And you very well may not want to or cannot bring yourself to work with your spouse during this process.  If you have been abused by your spouse, cheated on, or even abandoned by your spouse, or because of some other difficult reason, you may not be in the place to negotiate a resolution and in that case, allowing your attorney to navigate the process with you is your best option.

Again, bottom line—if you can work together, you will save not only money, you will save emotional costs and even legal costs.  When you and your spouse decide together what you want for your post-divorce family, you empower yourselves to choose rather than having a court decide for you.  If you cannot work together, you will want a lawyer who will educate you about the process, walk you through with caring and compassion, and advocate earnestly for your interests.