Part Four - The History of Collaborative Divorce and The Promulgation of §6.603 and §153.0072 Texas Family Code

COLLABORATIVE DIVORCE AND THE HISTORY OF METHODS OF RESOLVING FAMILY LAW CASES—by Leonard M. Roth and Jack H. Emmott III

Long before Collaborative Divorce was codified, it had to have a beginning, which was much more reminiscent of the little-guy-against-the-world scenario…sort of the legal version of Rocky.

In 1990, in Minneapolis, Minnesota, Stuart G. Webb, a family law practitioner could no longer tolerate the crippling litigation process to which family law litigants were subjected. With immense frustration and chutzpah, Webb decided, on his own, to change the process.

He developed a plan that made sense to him and enlisted or cajoled other attorneys to handle family cases with him using his new method, which was later termed Collaborative Divorce. Eventually, the process gained success in the vicinity and, in time, the Collaborative Divorce method's acclaim and usage became international.

Texas attorneys heard about Collaborative Divorce, learned its general concepts and embraced its terms in August of 2000, but the process did not have the force of law. Collaborative Divorce struck a resonant chord with many Family Law practitioners and in many ways, as for Webb, a secular epiphany.

THE PRACTICAL APPLICATION OF THE COLLABORATIVE DIVORCE STATUTES—EFFECTIVE SEPTEMBER 1, 2003

The Texas statutes are very straightforward, one statute relating to Collaborative Divorce in divorce litigation (§6.603, Texas Family Code) and one to be utilized in parent-child litigation (§153.0072, Texas Family Code). They are virtually identical statutes.

On a written agreement of the parties and their attorneys, a dissolution of marriage proceeding or a suit affecting the parent-child relationship may be conducted under collaborative divorce procedures. This written Participation Agreement, is read out loud by the clients and attorneys, explained and executed at the first joint session. The Agreement is the foundation of the collaborative divorce process.

This Agreement must provide for:

(1) a full and candid exchange of required information between the parties necessary to make a proper evaluation of the case,

(2) a suspension of all court intervention in the collaborative divorce dispute,

(3) an allowance for the hiring of neutral experts, as jointly agreed, to be used in the procedure;

(4) an absolute requirement of the withdrawal of all attorneys should the procedure not result in settlement; and

(5) any other provisions agreed to by the parties consistent with a good faith effort to collaboratively settle the matter.

The only allowed judicial involvement in the case is in approving the settlement agreement, making the required legal pronouncements, and signing the orders required by law to effectuate the agreement of the parties. The parties' collaborative divorce counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement. In actual practice, success in collaborative divorce is directly related to the training of the collaborative divorce attorneys and their faith in the process. More importantly, success is related to the desire of the parties to manage and preserve their own lives (and the lives of their children), estates and mental well-being.

The success rate for collaborative divorce is above 90%. It is unlikely that any grievances have been filed against attorneys in the process since the clients are in charge and resolve their own dispute. What actually happens in this miraculous procedure? Why does it work so well? That is for next time.