Divorce Without Disaster - More on Privacy

This is the 12th of a serialization of Janet P. Brumley's book about Collaborative law, called Divorce Without Disaster. This post is Chapter 2, part 4 of the book.

When litigants go to the courthouse for a hearing or an attorney's office for a deposition or witness statement, proceedings are usually on the record. People who value privacy are suddenly in an open courtroom discussing their sex lives, their finances and their taxes. This is all recorded by a court reporter and saved for posterity. Inventories and appraisements listing all the parties' assets and liabilities (complete with account numbers) are routinely filed with the district clerk of their county of residence.

Parties who resolve their divorces with collaborative law do so behind closed doors in their attorneys' offices. The law prohibits attorneys from disclosing anything they have heard, except in cases where someone declares an intent to commit a crime or poses a continuing threat of child abuse.

"Collaborative law is a cooperative effort, not a public forum," observes Mary Jo McCurley, a partner in the Dallas firm of McCurley Orsinger McCurley Nelson & Downing L.L.P. and former chair of the family law section of the State Bar of Texas. "With collaborative law, you can settle the case with a scalpel rather than a hatchet, which is what you get in court. Because the parties have crafted the agreement themselves, they own it more than if a judge has told them what to do. They're more likely to follow the terms of the agreement."

The Differences Between Collaborative and Cooperative Law

Collaborative divorce and cooperative divorce are processes by which parties may attempt to resolve their divorce cases by use of negotiation and use of professionals. They are alike in that the processes both attempt to avoid the courthouse with its incidental court appearances, formal discovery and the arbitrary deadlines of the statutes and rules. However, collaborative law and cooperative law differ in important respects.

Collaborative law is codified into the Texas Family Code in Chapter 15. The statute requires that a collaborative family law participation agreement be signed and that agreement must:

  1. Be in a record;
  2. Be signed by the parties;
  3. State the parties' intent to resolve a collaborative family law matter through a collaborative family law process under this chapter;
  4. Describe the nature and scope of the collaborative family law matter;
  5. Identify the collaborative lawyer who represents each party in the collaborative family law process;
  6. Contain a statement by each collaborative lawyer confirming the lawyer's representation of a party in the collaborative family law process.
  7. Include provisions for suspending tribunal intervention in the collaborative family law matter while the parties are using the collaborative family law process; and
  8. Unless otherwise agreed in writing, jointly engage any professionals, experts, or advisors serving in a neutral capacity.

The statute further allows the parties to include other provisions in a collaborative family law participation agreement which are not inconsistent with this chapter.

According to the statute, a collaborative family law process is concluded by:

  1. Resolution of all issues;
  2. Resolution of a part of a collaborative family law matter; or
  3. Termination of the process under other specified terms in the statute or which have been agreed by the parties.

Generally speaking, a collaborative family law process terminates according to the terms of statute by the giving of notice by one party or when one party seeks court intervention.

When a party discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party that attorney may not continue to represent or advise that party.

The parties must comply with some reporting deadlines while the case is pending, but, upon compliance with those reporting deadlines, the court cannot intervene with settings and discovery deadlines until after the second anniversary of the date the divorce case was filed.

Continue Reading...

The Evolution of Collaborative Law: Cooperative Law

"Collaborative Law" is an Alternative Dispute Resolution technique. In Collaborative law, each spouse pledges to sit down in the same room to pursue settlement of the case in the most cooperative way possible. They vow to keep talking until they reach settlement, and to stay out of court at all cost.

Over the years, the Collaborative law model has sprouted several variations. One of them is "cooperative law." I used to say I would never do a Cooperative Case. For those who don't recognize the lingo, Cooperative differs from Collaborative in that there is no attorney withdrawal provision. I felt (and still feel) that the attorney withdrawal provision encourages clients to stay the settlement course when the case gets difficult.

I also felt that the opposing counsel who wouldn't do Collaborative Law probably wasn't committed to settlement. This is where I was wrong. I'm just completing my first Cooperative case. I must admit that there were moments when I felt uncomfortable. If this wasn't a pure Collaborative case and it wasn't a pure litigation case, what on earth were my rules? I waited for the opposing counsel to race to the courthouse when we had our first problem. It didn't happen. In fact, we settled the case and it was done with very little acrimony, although it was a case that could have been hotly contested.

What I learned is that what matters most isn't the form of the process you are using. It is the integrity of the attorneys and parties involved. In Collaborative Law, a party can opt out and run to the Courthouse at any time. In either Collaborative or Cooperative Law, if you have two parties and two lawyers who are committed to settling, it will happen – with or without an attorney withdrawal provision.

Divorce Without Disaster - Use of Expert Testimony

This is the 11th of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 2, part 3 of the book. 

Frequently in divorce, the parties need help from outside experts. The parties may disagree over the fair market value of their residence and need an appraiser to determine that value. Or they may disagree on a child's medication and need the advice of a pediatrician. In more complicated divorces, there may be questions of tracing separate property, valuing the couple's interest in a trust or determining the value of a business. In each instance, the attorney for each party in a litigation divorce hires an expert to give his or her opinion to the court in the final trial. These experts realize they have been hired by one interested party and, therefore, may give an opinion that benefits that party.

This nefarious lack of integrity is not universal, but it does occur. Most lawyers who practice family law know the local experts who cannot be bought and will give their honest, professional opinion without bias. These are the experts hired in collaborative law cases. Unlike the two-expert duel in litigation, in collaborative law the parties and attorneys agree on one expert and pay the expert from the community estate.

"It's a lot easier to appraise a property, and get all the important variables that are involved, when both sides are in agreement with you being there," says real estate appraiser D.W. Skelton.

"When you're hired by only one side, the other side sometimes thinks you're going to give a higher or lower valuation based on what your side wants. They're constantly worried about that, and they may make it difficult for the appraiser to get into the home to do what he needs to do, such as take photographs or make notes. If the parties are civil to each other, no matter what type of divorce it is, you don't run into any of that."

This also applies to the mental-health experts often called on during a divorce process.

"With collaborative law, I'm hired by both attorneys, so it's clear that I have the best interest of the relationship and the family in mind," says therapist Patrick Savage.

"Since there's no other therapist involved, I'm able to render an opinion that both attorneys will honor, since it's not about winning or losing; it's about what's in their clients' best interest."

Janet P. Brumley

Prior posts:

Divorce Without Disaster - Collaborative Law - About the Author
Divorce Without Disaster - Collaborative Law - Introduction
Divorce Without Disaster - What Is Collaborative Law and Why Use It?
Divorce Without Disaster - Choices of How to End the Marriage
Divorce Without Disaster - A Closer Look at Collaborative Law
Divorce Without Disaster - Collaborative Law Can Save Everything
Divorce Without Disaster - Human Behavior Key to Collaborative Law
Divorce Without Disaster - What Makes Collaborative Law Different from Litigation?
Divorce Without Disaster - More on Communication

Divorce Without Disaster - More on Communication

This is the 10th of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 2, part 2 of the book. 

In a standard litigation divorce, the parties are instructed not to speak to each other directly about the case, but to talk only through attorneys. There is a good reason for this admonition. Usually tempers are short and parties are not operating at their highest level. This results in lower functioning than at most other times in their lives.

A person going through a divorce is stressed and hurt, and may not hear well or communicate effectively. It is a recipe for disaster for two angry and hurt people to try to talk substantively with no assistance. What generally happens is that the two people sit down to civilly discuss their problems and possible solutions. At first, they do well and make some progress. Sooner or later, though, one of them takes a potshot at the other (or at least that's how it is perceived) and the fight is on. When they finish, they've not only lost all the progress they made, but they've actually dug themselves into a more negative position than where they started.

Collaborative attorneys are trained to actively listen. When either attorney hears a distracting comment by the parties, he or she will use a method designed to get the conversation back on track. Collaborative attorneys prefer to do a collaborative case with another collaboratively trained attorney, rather than with an attorney who is not trained in the model.

It has been my experience that if the other attorney is untrained, but is a cooperative person with whom I have handled prior cases and built up a mutual trust, the collaborative divorce can proceed smoothly. In this situation, I will have to do most of the work–not because the other lawyer isn't willing, but because he or she doesn't know what needs to be done. If the other attorney is not particularly cooperative and is untrained in collaborative law, using the collaborative process can be difficult because so much time is spent overcoming the other attorney's aggressive attitude.

Referring back to my analogy of the hand-tailored versus off-the-rack suit, the untrained lawyer keeps trying to convince everyone it's fine that the suit is too tight and the pockets stick out. That lawyer doesn't understand why everyone won't just shut up and take the suit!

Further, in a standard litigation divorce, attorneys are prohibited from speaking directly to the client on the other side. A paradigm in which discourse is limited is not as effective as one in which everyone talks to everyone else.

"One of the very frustrating things that frequently happens in litigation is that no one is talking to each other. The clients aren't talking directly to each other, and sometimes the lawyers aren't even talking to one another," explains one collaborative lawyer.

"Your client calls and tells you something, then you call the other lawyer. If you're lucky, you can get him or her, or maybe you have to talk to the legal assistant. It's like the telephone game, and by the time you get to the end of the line, who knows what's been translated to the client? There are so many opportunities for confusion."

"But in a collaborative context,because everyone is there together, there just is not nearly the opportunity for the kind of confusion or poor communication that's built into the litigation model. In 23 years as an attorney, I have never seen litigation improve parties' communication."

Some clients report that their strained communication was strengthened and improved as a result of the collaborative process. "It wasn't an easy thing, because there are a lot of raw feelings involved, but I think that having the four parties–the two of us and our lawyers–sitting down together in a process that fosters communication, was very helpful," says a Dallas CPA who was divorced in 2000.

"We have two children in college now, so we're still dealing with those kinds of parenting issues and I think our communication has actually gotten better. Using the collaborative process as opposed to something perhaps more damaging emotionally allowed us to have better com-munication going forward. If you're going to have any kind of relationship down the road with the person you're divorcing, this process can assist in building communication skills that you can use later."

Janet P. Brumley

Prior posts:

Divorce Without Disaster - Collaborative Law - About the Author
Divorce Without Disaster - Collaborative Law - Introduction
Divorce Without Disaster - What Is Collaborative Law and Why Use It?
Divorce Without Disaster - Choices of How to End the Marriage
Divorce Without Disaster - A Closer Look at Collaborative Law
Divorce Without Disaster - Collaborative Law Can Save Everything
Divorce Without Disaster - Human Behavior Key to Collaborative Law
Divorce Without Disaster - What Makes Collaborative Law Different from Litigation?
Divorce Without Disaster - What Makes Collaborative Law Different from Litigation?

Divorce Without Disaster - What Makes Collaborative Law Different from Litigation?

This is the 9th of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 2, part 1 of the book. 

Below are some specific features that distinguish collaborative law from litigation.

Communication

In litigation, communication is limited and frequently destructive. In collaborative law, the parties and their attorneys communicate openly and constructively.

Use of Expert Testimony

In litigation, each side employs its own experts. That frequently results in the parties paying two bills, and the court may ignore both experts as biased.

In collaborative law, the parties and attorneys agree on a single expert in a particular field (home appraiser, financial advisor, therapist) and pay the expert from the community estate, resulting in less expense and more truth.

Privacy

In litigation, testimony becomes a matter of public record. In collaborative law, everything is conducted in private joint sessions that are neither transcribed nor public.

Scheduling

In litigation, all events (depositions, hearings, etc.) are scheduled with no consideration of the parties’ schedules, or to inconvenience the other party. In collaborative law, the parties schedule everything themselves, with their attorneys present.

Speed of Resolution

In litigation, each case moves at the speed of the attorneys and court. In collaborative law, each case moves at the speed of the parties.

Redemptive Resolution of Conflict

In litigation, each party gets to “slap” the other one multiple times. Usually, having the opportunity to beat up on the other side makes an anguished person feel better, at least momentarily, but nothing ever gets resolved. At some point, the legal process merely ends.

In collaborative law, the attorneys help the parties resolve issues, so resentment and anger are defused rather than merely deflected. Everybody wants to think well of themselves and be thought of the same way by others. Even in the midst of hurt, anger and anguish, most collaborative law participants keep their heads, behave and do right by themselves and their spouses. 

Janet P. Brumley

Prior posts:

Divorce Without Disaster - Collaborative Law - About the Author
Divorce Without Disaster - Collaborative Law - Introduction
Divorce Without Disaster - What Is Collaborative Law and Why Use It?
Divorce Without Disaster - Choices of How to End the Marriage
Divorce Without Disaster - A Closer Look at Collaborative Law
Divorce Without Disaster - Collaborative Law Can Save Everything
Divorce Without Disaster - Human Behavior Key to Collaborative Law
Divorce Without Disaster - What Makes Collaborative Law Different from Litigation?

Divorce Without Disaster - Who Can Use Collaborative Law?

This is the eighth post of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 1, part 6 of the book.

Once you understand collaborative law and appreciate what it can accomplish, it's important to determine if you will benefit from a divorce using this process. Collaborative law is a worthwhile alternative for divorcing couples who want to speak to each other after the divorce. It is for those who want no negative baggage left with the other side once the divorce is final. The process is especially sound for anyone with children.

But collaborative law is not appropriate in every case. It usually doesn't work if there has been a history of domestic violence in the marriage. In those cases, the victim is often emotionally battered and unable to be in the same room with the abuser and think clearly at the same time. Also, the abuser knows subtle ways of conveying terror in the victim that go unrecognized by the attorneys for both parties.

Collaborative law should be viewed skeptically in marriages where either party has an untreated or unacknowledged substance abuse or mental problem. People under the influence may make agreements they don't understand and never intend to honor. Collaborative law requires two whole, thinking persons who are capable of stepping out-side their anger and hurt, and acting rationally.

That does not mean angry or hurt people cannot employ collaborative law. On the contrary, almost every divorcing person is angry and hurt.

The collaborative process is conflict resolution, not conflict-free resolution. But it requires the ability and willingness to value other things more than revenge, such as the well-being of children, the continued ability to co-parent or the ability to see the ex-spouse in the workplace or socially without rancor.

Effective Collaborative Law Participants:

... 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 some 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.

- Janet P. Brumley

Prior posts:

Divorce Without Disaster - Collaborative Law - About the Author
Divorce Without Disaster - Collaborative Law - Introduction
Divorce Without Disaster - What Is Collaborative Law and Why Use It?
Divorce Without Disaster - Choices of How to End the Marriage
Divorce Without Disaster - A Closer Look at Collaborative Law
Divorce Without Disaster - Collaborative Law Can Save Everything
Divorce Without Disaster - Human Behavior Key to Collaborative Law

Divorce Without Disaster - Human Behavior Key to Collaborative Law

This is the seventh post of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 1, part 5 of the book.

The need for people to participate in major decision-making during a crucial period of life is at the root of this move to collaborative law. Just as medicine is evolving away from the physician giving the patient orders and toward more interaction between the doctor and the patient, participation is growing between the lawyer and the client. Today, patients want to know which medicines and procedures can help them recover and consider the pros and cons of each. People contemplating divorce want to know which legal processes best fit their situation, so they can, with an attorney's advice, choose for themselves.

For most people, the collaborative law process is an attractive one that can prove effective. We want to control our lives and decisions, as long as we feel safe doing so. Collaborative law allows us to create a safe environment and achieve good results. The attorneys act as a safety net for the parties. The parties each know that the attorneys will jump in if they are about to make an agreement that is unenforceable or unwise.

Attorneys untrained in collaborative law often claim that it can't work, that people are much too vindictive or stupid or mean to allow the process to work, especially in family law matters. This simply is incorrect.

"The divorce model of the past has involved, at times, intense litigation and conflict, which prevented families from moving forward with positive momentum," says Patrick A. Savage, a psychotherapist and mediator who was one of the first therapists in Dallas to work on collaborative law divorces. "I have trained with attorneys who are learn-ing to move from an adversarial approach to one of collaboration in order to perform the helpful services they can provide as 'counselors at law.' I have seen collaborative attorneys assist their clients in resolving conflicts to find closure by the end of the divorce."

"Using the collaborative process helps the couple understand their role in the divorce, better problem-solve, explore the best interests of the entire family, co-parent their children and move into new relationships without the continued baggage from the previous marriage," Savage adds.

Collaboration, he points out, is an extreme team effort that puts all the information on the table early, so the pieces are there to work with. "What's happening is, instead of the attorney saying, 'The other side wants this; don't give it to them,' the attorney asks, 'What is in the best interest of these clients and their children?'" We know it's much easier for people to do harm to others if they can do it from far away and are not engaged with that person. It's infinitely easier for pilots to bomb a village from several thousand feet in the air than it is for soldiers to attack when they see children playing in the streets. If you put people in a room across from each other, most will back off their desire to do harm and instead will do right.

Simple proximity can have this amazing effect. Coming face to face with the opposition, the vast majority of people will defuse whatever bombs they may be carrying, saving themselves as well as the enemy. The process of collaborative law is like that. It helps clients and attorneys evolve from their lower-functioning isolated selves into higher-functioning integrated people.

- Janet P. Brumley

Prior posts:

Divorce Without Disaster - Collaborative Law - About the Author
Divorce Without Disaster - Collaborative Law - Introduction
Divorce Without Disaster - What Is Collaborative Law and Why Use It?
Divorce Without Disaster - Choices of How to End the Marriage
Divorce Without Disaster - A Closer Look at Collaborative Law
Divorce Without Disaster - Collaborative Law Can Save Everything

Divorce Without Disaster - Collaborative Law Can Save Everything

This is the sixth post of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 1, part 4 of the book.

The most commonly asked question is "What does this type of divorce save you?" People catch on to the idea that a divorce under collaborative law can save you money. That's not always the case. But a survey in American Lawyer magazine estimated the average attorney fees in a collaborative law case are about one-third the amount of a litigated divorce.

Money is only one thing you save. Pursuing divorce collaboratively can save you everything - time, your children's self-esteem, friendships, privacy, assets and whatever relationship you have left with your spouse.

Doing your divorce collaboratively is much like getting a hand-tailored suit instead of one off the rack. A litigated divorce follows a predictable pattern fitted to the needs of legal professionals, not to your needs.

A collaborative divorce, on the other hand, fits the particular needs of your family. An off-the-rack suit almost fits you, but the pants may be a little tight across the pockets and a little long. The tailored pants fit perfectly, and that makes all the difference in how you feel about them.

Of course, in the real-life version of my metaphor, the hand-tailored suit always costs more than the others. To make the metaphor work, you have to imagine the hand-tailored suit made of an attractive and durable fabric that costs no more (in fact, probably less) than the off-the-rack suit. Would you really let the salesperson talk you into buying the off-the-rack suit or would you insist on the better product?

Collaborative law removes control of the divorce process from judges, juries and attorneys and gives it to the parties, where it belongs. Throughout this book, I relate experiences and give you examples of how truly revolutionary collaborative law is, and how beneficial it is for everyone involved.

But none of this information about collaborative law is as powerful as the following exchange between two people who divorced through the collaborative process. Ken and Abbe Hitchcock were married for 18 years and have three children. What's remarkable is that both of them consented to being quoted about their divorce in the same book. Most survivors of litigated divorces can't stand to be in the same room together. In most cases, the level of suspicion is so high that if I were to ask one side to comment, the other side would naturally not want to be quoted.

"We came out of it much better than we would have if somebody had told us what we were going to do," says Ken Hitchcock. "Civility was the key. Because we had an agenda and a goal for each meeting, we were both able to be civil. It forced a lot of interaction between us because we had to make decisions on our own. We made every decision based on mutual agreement, and nobody left angry. I've been told by people who have heard about this process it's unbelievable that we were able to handle it like that."

Abbe Hitchcock adds: "You often hear about people using negative tactics during a divorce, but in my opinion, that can have a lifelong negative impact on the family and is simply unnecessary. Behaving that way would not only have reflected poorly on me, but it also would have hurt my children. I saw firsthand how hurtful a traditional, adversarial divorce was for the children of a good friend of mine, and I just wanted a process that was going to take care of me and my children, in the least hostile manner.

"Divorce is difficult for anybody," she continues, "but this process was much smoother and left us feeling we had more control of our destination. It can be very painful, but it's much better when you're sitting down together with both of your attorneys and working this out together rather than in a courtroom where somebody else is going to tell you how you're going to live your life and when you're going to see your children."

- Janet P. Brumley

Prior posts:

Divorce Without Disaster - Collaborative Law - About the Author
Divorce Without Disaster - Collaborative Law - Introduction
Divorce Without Disaster - What Is Collaborative Law and Why Use It?
Divorce Without Disaster - Choices of How to End the Marriage
Divorce Without Disaster - A Closer Look at Collaborative Law

Divorce Without Disaster - A Closer Look at Collaborative Law

This is the fifth post of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 1, part 3 of the book.

The core principle of collaborative law is that each attorney and each party to the divorce pledges to sit down across from each other in the same room and pursue settlement of the case in the most cooperative way possible, without guns, venom or a roadmap to disaster. They vow to keep talking until they reach settlement, and to stay out of court at all cost.

It took an unassuming Minnesota family attorney named Stuart Webb to create collaborative law. Back in 1990, he became disenchanted with the outcomes he was seeing and announced that he no longer would take a divorce into the courtroom. To his competitors, Webb's move was unilateral disarmament. Clients wondered at first if this was a serious way to approach a divorce. To Webb, it was just the natural next step in a process that was heading into alternate methods of dispute resolution.

Collaborative law divorces are becoming commonplace in a growing number of states as more attorneys seek collaborative law training and the word spreads about the benefits of this process.

"My estimate is that collaborative law is alive and well in 30 states and six Canadian provinces," says Webb. "There are about 3,500 collaborative lawyers, and more are going through the training each day."

But it's impossible, he contends, to specify the number of divorces being done collaboratively in North America. Not all collaborative lawyers have been as closely tied to this method as he is. Some handle a collaborative law case one day, mediation the next. And some still litigate divorces in a small number of cases.

- Janet P. Brumley

Prior posts:

Divorce Without Disaster - Collaborative Law - About the Author
Divorce Without Disaster - Collaborative Law - Introduction
Divorce Without Disaster - What Is Collaborative Law and Why Use It?
Divorce Without Disaster - Choices of How to End the Marriage

Divorce Without Disaster - Choices of How to End the Marriage

This is the fourth post of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 1, part 2 of the book.

From the vantage point of the divorcing parties, there are many methods based on the amount of cooperation couples must exhibit and how much outside help they need to resolve their disagreements.

Kitchen Table Approach - This is direct negotiation between the parties. It can work well if the parties are at a high-functioning point in their lives and can communicate with each other. You rarely find this during a divorce. If the parties can approach each other on an even footing, this is the most efficient and productive way to end a marriage. If not, this method allows for the domination, manipulation and coercion that frequently accompany the breakdown of a relationship.

Negotiation of Terms with a Therapist - This is pure mediation, even though the therapist may not be trained in mediation techniques. This method does not subject you to the legal system, but it also does not give you the benefit of legal advice. Parties frequently make agreements that are not enforceable in courts of law or omit issues that must be addressed in a divorce decree.

Collaborative Law - This involves open communication among both spouses and their attorneys. It allows for the parties to make agreements on all the issues that need to be addressed and makes certain such agreements are enforceable. It is true conflict resolution.

Mediation - This is done in a caucus or shuttle style. Agreements are frequently obtained on all issues in a form that is enforceable. It requires three attorneys - one for each party and one to act as mediator. Mediation usually takes place after a temporary orders hearing and after discovery is complete. Mediation is designed as the step just before a full trial.

Special Master/Arbitrator - This is a hearing before a private judge. You can get a speedier hearing this way than at the courthouse, in a setting that is more private and convenient than court. Nothing is resolved here, only ended.

Litigation - This is the most public, intrusive, damaging avenue for divorce. However, it does end the marriage and sometimes it is the only way that works for the situation and the parties involved.

- Janet P. Brumley

Prior posts:

Divorce Without Disaster - Collaborative Law - About the Author
Divorce Without Disaster - Collaborative Law - Introduction
Divorce Without Disaster - What Is Collaborative Law and Why Use It?

Divorce Without Disaster - What Is Collaborative Law and Why Use It?

This is the third post of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 1, part 1 of the book.

Every divorce begins with a love story and ends in disappointment. A man and a woman are overcome by sadness and hurt. They have feelings of misplaced trust. They often regret the years they feel were lost and mourn for a future they won’t have together. If children are involved, the hurt is magnified by feelings of guilt.

How sad that we make the situation worse by the divorce process itself. There is every reason to make the situation better by using a process that is healing and restorative rather than destructive and alienating.

Parties to divorce in Texas often use the legal system as a means of getting even for real or imagined wrongs committed during the marriage. Revenge is popular. The community estate and the children of the marriage are often destroyed as a byproduct of a hazy bit of temporary insanity that seems to grip people when they surrender themselves to the power of the court system.

A decade ago, judges and attorneys tried to mitigate the effects of family law litigation by insisting in as many jurisdictions as possible that parties submit to mediation before going to court. This form of alternative dispute resolution is either required or strongly encouraged in most big-city family courts in Texas, and that has helped. But sometimes mediation is just a way station en route to the courthouse. What the system needed was a method of marital dissolution that opted people out of the court system entirely.

Texas Divorces Involve Two Different Rulebooks

Today, the Texas legal system handles divorces under one of two different sets of rules:

(1) The traditional method begins with filing, then moves to discovery, temporary orders, hearings and attempted alternative dispute resolution, or mediation. This entire process is controlled from the courthouse, under the Rules of Civil Procedure, and is referred to as litigation.

(2) The non-traditional method occurs outside the courthouse and the Rules of Civil Procedure, and is handled in a private forum known as collaborative law.

- Janet P. Brumley

Prior posts:

Divorce Without Disaster - Collaborative Law - About the Author
Divorce Without Disaster - Collaborative Law - Introduction

Divorce Without Disaster - Collaborative Law - Introduction

This is the second post of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is the introduction to the book.

Litigation was my life for the first 22 years of my practice. Like most litigators, I thought the opposition needed a swift kick sometimes, and I was the one to administer it. From the time I was a child on the playground, if someone was mistreated, it was my job to make things right.

There is something righteous and intoxicating about fighting for someone else. I loved to tell someone who was scared and lonely (as all divorcing parties are) that I would protect them. Each time I've been appointed a guardian ad litem for children, I've introduced myself by saying that I am a cross between a guardian angel and a guard dog. I work for them and will protect them from all harm. It's more than intoxicating. It's mother's milk.

I went into law for the joy of being this protector. I've heard criminal attorneys convince themselves that they are protecting the Constitution. I suppose attorneys who defend large corporations believe they are doing God's work, too.

But there came a time when I realized the avenging angel who only does good is a delusion. How could this be? I had to be doing right when my clients told me they didn't know what they would do without me.

I enjoyed what I was hearing, but not what I was seeing. What I thought was fixed kept coming unfixed. I would win a custody trial only to be back in court a couple of years later fighting modification of the custody order. 

You see, in family law litigation, winning only sets you up to lose. The person who wins thinks this is the end of the story. But just as no war has ever left the world a peaceful place, these divorce wars are only a precursor of battles to come. The supposed loser in the battle simply lies in wait to prove he or she was wronged. Nothing gets resolved. The parties' anger gets validated to the point that they can hardly stand to look at each other, much less work together for the good of children or themselves.

Finding collaborative law was an epiphany for me. Finally, a process encourages people to be reasonable, even when they don't want to be. Everyone can't leave the chaos behind and approach the future with new resolve. But they have a much better chance of accomplishing that with collaborative law than with litigation or even mediation. Plus, they get to keep their privacy and dignity intact.

The downside for the attorney is that in collaborative law, you are literally replaceable. Your participation agreement clearly states that if settlement fails, another attorney will replace you. But there's an upside for the attorney, too. The opposing party doesn't despise you. For each client who absolutely loved me, there was a spouse on the other side who hated the sight of me.

Now everyone in this process sees me for what I am - another mortal who knows Texas family law and is trying to help them help themselves. I am no longer the know-all, end-all and be-all, but I am also not the snake. Attorneys engaged in the process empower the parties to make good decisions and solidify their own futures.

That makes me proud of what I do today. I don't see myself reflected in anyone's mirror but my own. And I see those days on the schoolyard more clearly. Pulling that big-mouthed kid off the see-saw for calling people names didn't solve anything. It only caused the kid at the other end of the board to hit the ground as collateral damage.

Janet P. Brumley

Prior posts: Divorce Without Disaster - Collaborative Law

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Divorce Without Disaster - Collaborative Law

This is the first post of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post tells you about Janet.

Janet P. Brumley has more than 30 years’ experience as a divorce lawyer. During that time, she gained a reputation as a fierce advocate on behalf of her clients in the domestic relations courts of Texas. Janet is Board Certified in Family Law by the Texas Board of Legal Specialization and is a member of the College of the State Bar of Texas.

In 2003, Texas Monthly and Law & Politics magazines began selecting Texas Super Lawyers through a poll of other lawyers. Janet's fellow lawyers selected her as a Super Lawyer in 2003 and have selected her every year since. In addition, D Magazine selected Janet as one of the Best Lawyers in Dallas beginning in 2009.

In 2000, Janet began exploring a more civil way to obtain the best possible result for those who retain her: Collaborative law. Janet is a certified mediator and a member of both the International Academy of Collaborative Professionals and the Collaborative Law Institute of Texas. She is also a founding member of the Dallas Alliance of Collaborative Family Lawyers, a group of attorneys from different law firms whose common thread is their dedication to the sane and sensible features of collaborative law divorce.

Janet earned her law degree from the University of Memphis School of Law. She has served on the grievance committee of the State Bar of Texas and she has often taught continuing legal education seminars for the State Bar of Texas, including presenting at the Advanced Family Law Course, the largest gathering of family lawyers in the nation.

The next post will be the introduction to Janet's book.

Collaborative Law Basic Training - Summer 2010

 Collaborative Law:  Two Day Basic Training

by Janet P. Brumley

About the Program:  This two day basic training will cover interest based negotiation, a comparison and contrast of collaborative practice with litigation and mediation, an introduction to the Protocols of Practice for collaborative professionals and techniques for effective practice.  It is open to lawyers, mental health professionals and financial professionals, but is geared primarily toward lawyers.

Dates:  June 17 & 18     July 15 & 16

Details:  Check Firm News on our website or go directly to the downloadable brochures for June or July.

 

Collaborative Law Basic Training - Spring 2009

Collaborative Law:  Two Day Basic Training

by Janet P. Brumley

About the Program:  This two day basic training will cover interest based negotiation, a comparison and contrast of collaborative practice with litigation and mediation, an introduction to the Protocols of Practice for collaborative professionals and techniques for effective practice.  It is open to lawyers, mental health professionals and financial professionals, but is geared primarily toward lawyers.

Dates:  April 23 & 24     May 21 & 22     June 25 & 26

(Begins promptly at 9:00 a.m. and ends at 5:00 p.m. each day)

Location: 3131 Turtle Creek Blvd., Penthouse Suite, Dallas, Texas 75219

Cost:  $500.00 per person - ** Limited to 10 Enrollees for maximum interaction (Cost must be paid upon reservation and is refundable if canceled at least seven days prior to seminar)

About the Trainer:  Janet P. Brumley is the author of Divorce Without Disaster; is board certified in family law by the Texas Board of Legal Specialization; has practiced law for 25+  years in Dallas County, Texas; is a frequent presenter on collaborative law at professional continuing education seminars; is a member of the committee that drafted Texas Collaborative Law Protocols of Practice for Lawyers; has served as chairperson of Dallas Alliance of Collaborative Family Lawyers; was selected as a Texas Super Lawyer and Top 50 Women Attorneys in Texas; has been selected by her peers to be included in The Best Lawyers of America 2007; has conducted collaborative law training in Dallas, Houston and Fort Worth; attended Harvard Law School Advanced Negotiation Workshop; is a member of International Alliance of Collaborative Professionals, Texas Collaborative Law Institute, Dallas Alliance of Collaborative Lawyers and the American Academy of Matrimonial Lawyers.

Please contact Becky Borders to enroll or for further information. 214.526.5234 or bborders@vernerbrumley.com 

Collaborative Law Basic Training

Collaborative Law:  Two Day Basic Training

by Janet P. Brumley

About the Program:  This two day basic training will cover interest based negotiation, a comparison and contrast of collaborative practice with litigation and mediation, an introduction to the Protocols of Practice for collaborative professionals and techniques for effective practice.  It is open to lawyers, mental health professionals and financial professionals, but is geared primarily toward lawyers.

Dates:  March 19 & 20, 2009 (Begins promptly at 9:00 a.m. and ends at 5:00 p.m. each day)

Location: 3131 Turtle Creek Blvd., Penthouse Suite, Dallas, Texas 75219

Cost:  $500.00 per person - ** Limited to 10 Enrollees for maximum interaction (Cost must be paid upon reservation and is refundable if canceled at least seven days prior to seminar)

About the Trainer:  Janet P. Brumley is the author of Divorce Without Disaster; is board certified in family law by the Texas Board of Legal Specialization; has practiced law for 25+  years in Dallas County, Texas; is a frequent presenter on collaborative law at professional continuing education seminars; is a member of the committee that drafted Texas Collaborative Law Protocols of Practice for Lawyers; has served as chairperson of Dallas Alliance of Collaborative Family Lawyers; was selected as a Texas Super Lawyer and Top 50 Women Attorneys in Texas; has been selected by her peers to be included in The Best Lawyers of America 2007; has conducted collaborative law training in Dallas, Houston and Fort Worth; attended Harvard Law School Advanced Negotiation Workshop; is a member of International Alliance of Collaborative Professionals, Texas Collaborative Law Institute, Dallas Alliance of Collaborative Lawyers and the American Academy of Matrimonial Lawyers.

Please contact Becky Borders to enroll or for further information. 214.526.5234 or bborders@vernerbrumley.com 

Collaborative Law Basic Training

Last training for 2007:

Collaborative Law:  Two Day Basic Training

by Janet P. Brumley

About the Program:  This two day basic training will cover interest based negotiation, a comparison and contrast of collaborative practice with litigation and mediation, an introduction to the Protocols of Practice for collaborative professionals and techniques for effective practice.  It is open to lawyers, mental health professionals and financial professionals, but is geared primarily toward lawyers.

Dates:  October 18 & 19, 2007 (Begins promptly at 9:00 a.m. and ends at 5:00 p.m. each day)

Location: 3131 Turtle Creek Blvd., Penthouse Suite, Dallas, Texas 75219

Cost:  $500.00 per person - ** Limited to 10 Enrollees for maximum interaction (Cost must be paid upon reservation and is refundable if canceled at least seven days prior to seminar)

About the Trainer:  Janet P. Brumley is the author of Divorce Without Disaster; is board certified in family law by the Texas Board of Legal Specialization; has practiced law for 25+  years in Dallas County, Texas; is a frequent presenter on collaborative law at professional continuing education seminars; is a member of the committee that drafted Texas Collaborative Law Protocols of Practice for Lawyers; has served as chairperson of Dallas Alliance of Collaborative Family Lawyers; was selected as a Texas Super Lawyer and Top 50 Women Attorneys in Texas; has been selected by her peers to be included in The Best Lawyers of America 2007; has conducted collaborative law training in Dallas, Houston and Fort Worth; attended Harvard Law School Advanced Negotiation Workshop; is a member of International Alliance of Collaborative Professionals, Texas Collaborative Law Institute, Dallas Alliance of Collaborative Lawyers and the American Academy of Matrimonial Lawyers.

Please contact Becky Borders to enroll or for further information. 214.526.5234 or bborders@vernerbrumley.com

Collaborative Law Basic Training

Only two trainings left for 2007!!

Collaborative Law:  Two Day Basic Training

by Janet P. Brumley

About the Program:  This two day basic training will cover  interest based negotiation, a comparison and contrast of collaborative practice with litigation and mediation, an introduction to the  Protocols of Practice for collaborative professionals and techniques for effective practice.  It is open to lawyers, mental health professionals and financial professionals, but is geared primarily towards lawyers.

Dates:
  • September 20th and 21st, 2007 (Begins promptly at 9:00 a.m. and ends at 5:00 p.m. each day)
  • October 25th and 26th, 2007 (Begins promptly at 9:00 a.m. and ends at 5:00 p.m. each day)
Location: 3131 Turtle Creek Blvd., Penthouse Suite, Dallas, Texas 75219

Cost:  $500.00 per person - ** Limited to 10 Enrollees for maximum interaction (Cost must be paid upon reservation and is refundable if canceled at least seven days prior to seminar)

About the Trainer:  Janet P. Brumley is the author of Divorce Without Disaster; is board certified in family law by the Texas Board of Legal Specialization; has practiced law for 25+  years in Dallas County, Texas; is a frequent presenter on collaborative law at professional continuing education seminars; is a member of the committee that drafted Texas Collaborative Law Protocols of Practice for Lawyers; has served as chairperson of Dallas Alliance of Collaborative Family Lawyers; was selected as a Texas Super Lawyer and Top 50 Women Attorneys in Texas; has been selected by her peers to be included in The Best Lawyers of America 2007; has conducted collaborative law training in Dallas, Houston and Fort Worth; attended Harvard Law School Advanced Negotiation Workshop; and is a member International Alliance of Collaborative Professionals, Texas Collaborative Law Institute, Dallas Alliance of Collaborative Lawyers and is a member of the American Academy of Matrimonial Lawyers.

Please contact Becky Borders to enroll or for further information. 214.526.5234 or bborders@vernerbrumley.com
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Collaborative Law for Family Law

"Collaborative Law" is a recent addition to Alternative Dispute Resolution techniques. It is designed to be less adversary than traditional divorce practice, with the goal of attempting to address each party’s needs in more detail than is possible at mediation or in trial. 

The distinguishing characteristic of Collaborative Law is that the attorneys and clients agree that if the process is not successful, the attorneys will withdraw, and the clients must obtain other counsel for litigation.

The Collaborative Law process begins with each of the spouses choosing an attorney. Then, a series of meetings between counsel and the parties begin. These meetings commonly are called joint sessions.

In Collaborative Law, the parties and the attorneys schedule a series of informal meetings at which all four will be in attendance, allowing discussions to be interrupted and resumed later if difficulties or tension arise, with no significant time or momentum being lost before the next meeting.

Lawyers using a collaborative approach agree not to litigate the divorce if a settlement is not reached, removing the incentive for a "win at all cost" approach by either side. Discovery is supplanted by an agreement among the parties to voluntarily disclose information, and parties pledge to work to resolve the case in a manner acceptable to both spouses.

Texas attorneys are ethically prohibited from representing both spouses in a divorce. Because of the emotional and subjective nature of divorce, it is important for each spouse to have and objective and professional guide through the process. You might think there would be an advantage to your being the only party with counsel. However, one attorney may not advise both spouses. A common metaphor for Collaborative Law is that of white-water rafting. Just as in white-water rafting, you need an experienced guide - one who has navigated the waters for a considerable period of time with a considerable degree of success. The guide will assist you toward your destination, but will know when to direct you to pull your oar out of the water and how to maneuver you through the turbulent eddies.

Generally, the filing for divorce is an agreed upon event, planned by the two spouses and facilitated by the attorneys. At the conclusion of the settlement meetings, the necessary legal documentation for marital dissolution, asset distribution, and child conservatorship will be prepared and filed by the attorneys, and the date for appearing in court with the agreement will be scheduled at a time convenient for all.

Since one of the tenets of Collaborative Law is that the process is conducted with civility in private settings, rather than with hostility in the public arena of the courthouse, the longstanding relationship of the attorneys acts as an enhancement to successful settlement of your case.