Family Law
Why should I consider Collaborative Divorce?
Collaborative Divorce offers divorcing parties and their lawyers a structured, non-adversarial alternative to reaching settlement. It assures individuals that they will be represented by high quality, skilled legal counsel for the resolution of their legal issues, without court involvement.
What is the difference between Collaborative Divorce and Mediation?
Under the prevailing model of mediation used in Texas, there is one “neutral” who helps the disputing parties and their lawyers try to settle their case. Mediation usually occurs after the case has been prepared for trial, adversarial discovery has been conducted, and the parties positions have become polarized.
Most of the financial and emotional trauma of the traditional divorce case has already been suffered by the parties at this stage of the proceedings. If one side becomes unreasonable or stubborn, or simply does not want to settle the issues without a trial, the mediator may not have a choice but to terminate the mediation and send the parties on their way to the Courthouse.
Collaborative Divorce is designed to protect the rights of each party, while operating under the commitment to settle. Each side has professional legal advice and advocacy at all times during the process. The parties may choose upon consulting with their attorneys to bring in appropriate professionals, financial, mental health and/or communication experts to assist with the case. When particularly difficult issues arise, it is the job of the entire collaborative team to ensure that the process stays positive and productive – focused on acceptable resolution rather than "winning" or "losing."
What happens if one side is dishonest in some way, or misuses the Collaborative process to take advantage of the other party?
While this can never be completely prevented, the collaborative process helps guard against it. Collaborative divorce requires a lawyer to withdraw if his/her client is being dishonest, or participating in the process in bad faith. The parties and attorneys agree to and sign a Collaborative Participation Agreement at the beginning of the case in which they all agree to handle the case openly and honestly.
What happens if agreement cannot be reached and one or both parties want a conventional divorce?
The parties and attorneys are bound by the Collaborative Participation Agreement that they will not go to Court over any contested issue. If agreement cannot be reached, the Collaborative attorneys may suggest bringing in a mediator or other professionals to facilitate settlement. However, if one or both parties wish to discontinue the collaborative process, both attorneys are legally obligated to withdraw from representing their clients. This means that both parties have an incentive to settle their case collaboratively in order to avoid having to hire new attorneys and begin a traditional, litigated divorce through the court system, adding time and expense to the divorce.
How does the practice of Collaborative divorce affect attorney’s fees?
Representation and fee agreements between attorney and client are not directly affected by the collaborative Participation Agreement. However, many of the most costly parts of a conventional, litigated divorce (like depositions, multiple expert witnesses and hearings) are avoided in the collaborative process.
Does the Collaborative process work if I choose an attorney who is trained in the collaborative process but my spouses attorney isn’t?
Yes, as long as all parties agree to and sign a Collaborative Participation Agreement. The attorney who may not be familiar with the Collaborative process should be approached by the experienced Collaborative attorney to determine their receptiveness to the process, and to using the Collaborative process in the particular case. It is usually best to make the first contact by phone and to follow up with a meeting in person, and/or letter with extensive information about the Collaborative process. The information should describe the Collaborative process and show its legitimacy as a dispute resolution process.
How is property divided?
Property will be divided into two categories, “community and separate.” Community property is all property acquired during the marriage, and includes both assets and debts. Each spouse is entitled to one-half of the community property. Separate property is the property each party owned before marriage or acquired by inheritance or gift during the marriage.
Where can the divorce petition be filed?
You must file your divorce petition in the county where you have lived for the preceding 90 days. You must have been a resident of Texas for a minimum of six months.
What is Joint Managing Conservatorship?
These are the rights and duties awarded to each parent concerning the children, such as determining the child’s residence, what schools the child will attend and what doctor he/she will see. In Collaborative divorce the parents will be named Joint Managing Conservators and most, if not all, of these rights and duties will be shared between both parents.
How is possession of the children determined?
The divorce decree must contain a possession schedule or parenting plan in which each parents time with the children is set out in detail. In Collaborative divorce, a possession schedule or parenting plan can be tailored to fit the needs of both parents. The Texas standard possession schedule which sets out a minimum possession schedule for the parent who is not designating the child’s primary residence is set out below:
- 1st, 3rd and 5th weekends of each month beginning at end of school on Friday and ending at 6:00 p.m. on Sunday
- The choice of either Thursdays each week from 6:00 p.m. – 8:00 p.m. or the end of school on Thursday until beginning of school on Friday
- Alternate Thanksgiving, Christmas and Spring Break
- 6:00 p.m. – 8:00 p.m. on the child’s birthday
- Mother’s Day or Father’s Day weekend
- 30 days in the summer
What if the divorce involves young children under three?
Overnight possession and summer periods of possession for young children will be addressed with particular care in Collaborative divorce. Shorter periods of possession occurring more frequently may be set out in the possession schedule.
How is child support determined?
Texas Child Support Guidelines set out that the obligor parent is to pay a certain percentage of his/her monthly net resources for child support. The Guidelines provide for the following percentages, depending on the number of children:
- one child = 20%
- two children = 25%
- three children = 30%
- four children = 35%
- five children = 40%
Child Support is paid until the child is 18 years of age or graduates high school.
What are the steps in an Adoption?
Adoption - International, Domestic and Stepparent. International Adoption - An IR-4 visa or IR-3 visa will be issued in the adopted child's home country by the U.S. Department of Homeland Security. The visa will allow the adopted child to travel to the United States. A Petition for Adoption can then be filed in Texas. Domestic and Stepparent Adoption - Involves a termination of the biological parent(s) parental rights and a Petition for Adoption of the child or stepchild. A biological parent may voluntarily relinquish her/his parental rights.