When you hear the term collaborative divorce, mediation may come to mind, but in reality, collaborative divorce is about much more than mediation alone, although your collaborative divorce may involve mediation. Collaborative divorce signifies a commitment to working out the terms of your divorce between yourselves – with the skilled guidance of your respective experienced collaborative divorce attorneys and any other professionals you may need. When you pursue a collaborative divorce, you set the stage for working together – even if this means communicating through your divorce attorneys – and your efforts can ultimately prove beneficial to everyone involved, including your children.
The most important point to keep in mind about collaborative divorce is that the work that needs to be done is no different than in any other divorce. You and your divorcing spouse must resolve the following divorce terms (as applicable):
The division of your marital property
Your child custody arrangements (called conservatorship in Texas)
Alimony (called spousal maintenance in Texas)
Each of these terms can present its own unique challenges, but hammering out compromises that both of you can agree to and that also protect your parental and financial rights is the crux of collaborative divorce.
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The Division of Your Marital Property
The property and assets that you and your spouse amass over the course of your marriage are considered marital property in the eyes of the law, and they must be divided equitably in the event of divorce. Equitably means fairly – after the unique circumstances of your marriage have been taken into careful consideration. It is important to distinguish between marital and separate property because your separate property will remain your own property moving forward, but the dividing line between separate and marital property often becomes a sticking point in a divorce. Those assets that you bring into your marriage with you and that you keep separate throughout your marriage amount to separate property, but keeping the property separate can be exceptionally difficult. Consider the following:
If you bring an IRA (or another kind of retirement account) into your marriage with you, its original value will likely remain your separate property, but any increase in its value over the years will probably be deemed marital.
If you bring a business or real estate into your marriage with you, any increase in its value over the course of your marriage will similarly be marital property.
If you work in the business you own separately but fail to pay yourself a fair wage, this decreased contribution to your family’s finances can nudge ownership toward marital property.
If you do not carefully separate financing for your business from your personal finances, it can blur the line between separate property and marital property. For example, using marital funds to help grow your business can prove problematic.
All told, separating marital property from separate property can become very complicated very quickly.
Two exceptions to the rule of marital property include:
A gift that you receive in your name alone during the course of your marriage is your separate property.
An inheritance that you receive in your name alone during the course of your marriage is your separate property.
Your Child Custody Arrangements
Another issue that is often hotly contested in divorce is child custody. In Texas, child custody is divided into legal and physical custody. Legal custody determines if both of you will continue making important decisions on behalf of your children, if one of you will take on the responsibility, or if you will divide the responsibility according to the kind of decisions being made. The categories of decisions involved include the following:
Decisions about your children’s schooling
Decisions about your children’s religious education
Decisions about your children’s health care
Decisions about your children’s extracurricular activities
Physical custody, on the other hand, addresses the matter of how you will divide your parenting time. While you can devise a schedule that addresses your family’s unique needs – and that may not look like any other divorced couple’s – there are two basic approaches to physical custody, including:
One of you becomes the primary custodial parent with whom your shared children make their primary home and spend the majority of their overnights.
You and your ex split your parenting time more equally and have roughly the same number of overnights with your shared children.
When the court intervenes on matters that relate to children, the best interests of those children are always its guide.
Child support is the tool employed by the State of Texas to help ensure that both parents continue to support their children throughout their childhood years. Childhood is calculated by implementing strict state guidelines that take primary factors into consideration. It is important to note, however, that if there is a compelling reason for doing so, the court has the discretion to go outside these guidelines. Generally, if one of you becomes the primary custodial parent, the other will pay him or her child support, but even if you and your ex split your parenting time exactly in half, the parent with the higher income is very likely to have a child support obligation.
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Many divorces proceed without alimony playing a role, but when there is a need, alimony plays an important function. Alimony is designed to provide a spouse who is financially disadvantaged by the divorce the financial help that he or she needs to become more financially independent. Alimony payments are usually intended to help the spouse who has experienced a financial downturn obtain the education, job training, or experience he or she needs to support himself or herself. Wide-ranging considerations go into the determination of alimony, but some of the most important include:
The length of the marriage
The level of education and earning potential of both spouses
The contributions each spouse made to the marriage, including housekeeping and raising the children
The separate property of each and the division of marital property received by each
The ultimate goal of your collaborative divorce is to resolve each of the terms of divorce outside of the need for the court’s intervention.
The Collaborative Divorce Process
In order to enter into a collaborative divorce, you and your divorcing spouse will need to sign a Participation Agreement, which outlines the rules of engagement. Your dedicated divorce attorney will go over this agreement with you carefully to ensure that you understand what is involved and what is expected of you and that you are comfortable with the terms included. There are several basic elements of collaborative divorce that it is important to understand.
Your Collaborative Divorce Attorney
You and your divorcing spouse will each be represented by your own divorce attorney who has specific experience in negotiations, in how collaborative divorces are structured, and in interpersonal conflict resolution. Although you are going for collaboration here, you will not be flying solo; your collaborative divorce attorney is on your side and will be negotiating on behalf of your best interests. In other words, there is no need to worry about your parental and financial rights getting lost in the spirit of collaboration.
The collaboration itself will involve a series of joint meetings where you, your soon-to-be-ex, and your respective attorneys will engage in problem-solving sessions in which you address the terms of your divorce that remain unresolved. Although you are here to find mutually acceptable collaborative responses to these matters, you will remain represented by your separate legal counsel, which helps to ensure that you are not bamboozled via goodwill or in the spirit of collaboration into losing track of what is best for you and your children. An important aspect of this collaboration process is that everything that happens within this context is private, which many divorcing couples find extremely beneficial. The records from divorces that are litigated by the court are public information, and many couples would prefer to keep their private business just that – private. Finally, any statements or deals made during the collaborative divorce process will not make their way into divorce court (if your case ultimately finds its way there).
The Participation Agreement
It is important to note that a collaborative divorce is in no way an abbreviated divorce process when it comes to hammering out mutually acceptable terms. Both sides will be required to provide each other with every manner of documentation necessary to sort the matters before them out. Generally, this means financial documentation such as the following:
Past and current tax filings
Retirement account statements
Your mortgage and deeds for any other property owned
Your financial portfolio
Titles to your cars and recreational vehicles
Documentation regarding business ownership
If it has to do with money and finances, it is relevant and should be readily available to both sides.
The most important factor when it comes to obtaining a collaborative divorce is that you are both fully committed to the process and to cooperating fully throughout. This does not mean that you and your divorcing spouse have to be best friends – or even that you have to be on speaking terms – but it does mean that you both have to be willing to do what it takes to achieve a collaborative divorce. This amounts to sharing information and documentation freely and openly, listening to reason, accepting reality, and making decisions that move your case forward (without acquiescing to anything that does not support your rights or treats you fairly). Divorce is a stressful and emotional transition, and achieving this collaborative mindset can feel like a tall order, but with a committed, collaborative divorce lawyer in your corner and your determination to keep the decision-making power between yourselves, you will be well on your way to accomplishing this important goal.
Your Divorcing Spouse’s Mindset
A very important point to be made about collaborative divorce is that if you are not both fully on board, moving directly toward litigation is likely the most efficient and effective path forward. If you are convinced that your spouse is more interested in sabotaging the process than in digging deep and achieving a collaborative divorce, you should not feel pressured to give it a try anyway. The fact is that if your soon-to-be-ex wants to take things in a contentious direction, nothing you do is likely to snap him or her out of it, and cutting out the additional step of a collaborative divorce is likely in your best interest.
The Benefits of a Collaborative Divorce
The benefits of a collaborative divorce can be immense.
While the collaborative divorce process is not an abbreviated process, you can schedule the joint meetings between yourselves – with no need to fight for a spot on the court’s overcrowded docket. Further, when you are motivated to get the job done, you might be surprised by how effectively and efficiently you move through the collaborative process.
The more complicated your divorce, the more costly you can expect the collaboration process to be (based on your requirements for outside professionals and for more careful analysis overall), but it is almost certain to be less costly than going to court. Preparing for court is an exacting, time-consuming process that is likely to include the need for costly and time-consuming motions that make going to court as stressful as it is expensive.
Divorce is hard on everyone, but if you and your divorcing spouse are at each other’s throats, your kids could be paying the steepest price. Committing to collaborate with your spouse throughout the divorce process is one of the best ways to help protect your children during this difficult transition.
Seek the Professional Legal Guidance of an Experienced Killeen Collaborative Divorce Attorney Today
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a compassionate, collaborative divorce attorney who has the experience and legal savvy to help you obtain a collaborative divorce that works for you and that helps protect your children. To learn more, please do not wait to contact or call us at 254-501-4040 today.