Updated on September 12, 2023
When you hear the term collaborative divorce, mediation may come to mind. However, 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 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.
While collaborative divorce is an excellent option that should be carefully considered by those well-positioned to resolve the terms of their divorce without legal intervention, it can prolong, complicate, and increase the cost of divorce for others.
In other words, it’s important to have a clear understanding of what collaborative divorce entails before committing to the process. For more information about collaborative divorce and to learn if it will be a good fit for your situation, consult with a Killeen divorce attorney.
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, which is often the most difficult term to agree on
Your child custody arrangements (called conservatorship in Texas)
Child support, as applicable
Spousal maintenance, more commonly known as alimony
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.
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.
The factors used to determine fairness in the division of marital property include the following considerations:
Any significant age discrepancy between you and your divorcing spouse
Your overall physical and mental health and your spouse’s
Any disparity between you and your divorcing spouse’s earning power
The size of your marital estate
The size of each spouse’s separate estate
Any future inheritances or gifts expected by either of you
The tax considerations associated with the proposed property division
The unique nature of specific assets
Whether either spouse’s wrongdoing led to the dissipation of marital assets
Any additional factors considered relevant to your case
There are two kinds of assets that are exceptions to the rule of marital property. The following kinds of property will not need to be divided upon divorce, even if it is acquired during the marriage:
Gifts that you receive in your name alone during the course of your marriage are your separate property.
Inheritances that you receive in your name alone during the course of your marriage are your separate property.
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. Assets can lose their separate classification for all of the following reasons:
Failing to keep them strictly separate from marital assets
Allowing them to commingle with your marital finances
Adding your spouse’s name to a separate lease or title
Treating the asset like a marital asset
Owning assets that increase in value
For example, 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 property. Learn more about dividing retirement accounts by reading “Is My Spouse Entitled to My Retirement Benefits in a Texas Divorce?”
All told, keeping separate property apart from marital property can become very complicated very quickly.
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 who will continue making important decisions on behalf of your children. The categories of decisions involved include the following:
Decisions about your children’s religious education
Decisions about your children’s healthcare
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:
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 related to children, the children's best interests are always its guide. The children’s best interests can include all of the following factors:
Each parent’s scheduling preference
The scheduling preference of any child who is considered old enough and mature enough to voice a reasonable choice
Each child’s age and needs, including any special needs
Each parent’s overall ability and inclination to adequately address each child’s needs
The extent of each parent’s participation in raising the children so far
The extent to which the status quo – or current living situation – serves the children
Each parent’s commitment to supporting the other’s ongoing relationship with the children
Each parent’s commitment to facilitating effective co-parenting, including by keeping the lines of communication open
Whether or not negative factors such as domestic violence or child abuse are concerns
Any additional factors the court believes are relevant to the case at hand
Texas courts begin with the presumption that the children’s best interests are best served by maximizing the amount of time they’re able to spend with both parents.
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. Child support is calculated according to strict state guidelines. 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. (“Do You Have to Pay Child Support with Joint Custody in Texas?”)
Many divorces proceed without alimony playing a role, but when there is a need, alimony plays an important function in divorce cases. 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 following factors:
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 listed above without the need for the court’s intervention. An experienced Killeen divorce attorney can help you negotiate with your ex and find mutually agreeable terms. Contact a lawyer today to discuss the terms that apply to your case.
The Collaborative Divorce Process
In 2001, Texas amended its laws to include a collaborative divorce option. Collaboration in this context does not mean simply wanting to keep your divorce out of court. Instead, a collaborative divorce requires considerable commitment.
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 Killeen 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.
If you are considering a collaborative divorce, there are several basic elements you should consider.
You Will Have a Collaborative Divorce Attorney
You and your divorcing spouse will each be represented by your own divorce attorney who has specific experience in negotiations, collaborative divorce structure, and 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.
If you are unsure about hiring a divorce lawyer, read “Even the Simplest Divorce Can Benefit from an Experienced Divorce Attorney.” You can also schedule a FREE consultation with a Killeen lawyer to see how having a lawyer on your side can help you.
You Will Need to Collaborate with Your Spouse
The collaboration itself will involve a series of joint problem-solving sessions in which you, your soon-to-be-ex, and your respective attorneys will address the terms of your divorce that remain unresolved.
Although you are here to find mutually acceptable responses to these matters, you will remain represented by your separate legal counsel, which helps to ensure that you are not bamboozled by goodwill or 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 divorce documents private.
Another benefit of collaborative divorce is its finality. 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).
You Will Be Required to Share Documentation
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 out the matters before them.
Generally, the following kinds of financial documentation are shared, along with any others that are deemed necessary:
Past and current tax filings
Retirement account statements (“Is My Spouse Entitled to My Retirement Benefits?”)
Your mortgage and deeds for any other property owned
Your financial portfolio
Titles to your cars and recreational vehicles
Documentation regarding business ownership (“Will My Spouse Get Half of My Business If We Divorce in Texas?”)
If it has to do with money and finances, it is relevant and should be readily available to both sides.
You Should Keep a Cooperative Mindset
The most important factor of collaborative divorce is that you are both fully committed to cooperating throughout the divorce process. 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.
A collaborative divorce requires 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 treat you fairly).
Divorce is a stressful and emotional transition, and achieving this collaborative mindset can feel like a tall order, but with a committed Killeen 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 Must Also Be Cooperative
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 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. If your soon-to-be ex wants to make your divorce contentious, 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.
If the Collaborative Divorce Process Is Not Successful
If the collaborative divorce process does not prove successful at resolving all the remaining terms of your divorce, you’ll need to proceed to court. You will not, however, be able to do so with your collaborative divorce attorney.
Instead, you and your divorcing spouse will need to hire new attorneys and, in essence, begin the process all over again, which includes getting your attorney up to speed on your case. When this happens, the financial and time-saving benefits of collaborative divorce are quickly waylaid by the expense of procuring new legal counsel, which drags out your divorce in the process.
In other words, being fully committed to the collaborative divorce process prior to instigating it is paramount.
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 divorce process.
For more tips on how to keep your divorce process short, read “How Long Does It Take to Get a Divorce in Texas?”
The more complicated your divorce, the more costly you can expect the collaboration process to be (based on your requirements for outside professionals and more careful analysis overall), but pursuing a collaborative divorce is almost certain to be less costly than going to court.
Preparing for court is an exacting, lengthy process that is likely to include the need for costly and time-consuming motions that make taking your divorce to court as expensive as it is stressful. You can bypass this costly process by collaborating with your spouse and deciding your own divorce terms.
A selling point of collaborative divorce for many people – especially those facing high-profile divorces – is privacy. Collaborative divorce is far more private than resolving the matter in court. The term resolutions that you hammer out and the information you share during the collaborative divorce process remain private, which most divorcing couples can appreciate. Turning an issue that is as private as the dissolution of your marriage into something that is open to public inspection is not something that most of us would willingly choose.
Even if you are unable to resolve all of your divorce terms through the collaborative divorce process, the information shared and discussed during the process remains private. However, whatever ultimately comes out in court – as your divorce is finalized – will be a matter of public record.
For more tips on keeping your divorce private, read “Keeping Your Divorce Documents Private in Texas.”
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.
Children do not have the emotional ability to separate themselves from their parents’ divorce, which can lead to an internalization of feelings and increased anxiety. Children simply don’t have what it takes to process all the emotional fallout of divorce, which makes collaborative divorce a great option.
If you and your soon-to-be ex have come to the mutual decision that you are willing to do what it takes to keep your divorce out of court, it is a good indicator that you are also willing to do what it takes to keep the peace for the sake of your children. Committing to collaborate with your spouse is one of the best ways to help protect your children during divorce.
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 us online or call us at (254) 781-4222 today.