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When I started practicing law 51 years ago, few divorces were filed, and the final judgments of divorce were usually two or three pages. Through the years, we not only have had many more divorces filed, but property and children’s issues also have become much more complex. Now we have difficult valuations of stock options and retirement plans, qualified domestic relations orders, complex tax ramifications, paternity determinations using DNA testing, statutory guidelines for child support and possession, and so on. Also, divorce cases became more litigious, and a few family lawyers have prided themselves on being “bombers” able to decimate the other side. I’ve seen the family fabric — and especially children — irretrievably damaged, court dockets jammed and divorce costs escalate. Some lawyers, and especially judges, thought there had to be a better way to terminate marriage relationships, and courts began to order mediation before the court would hear the case on the merits. Now another avenue of civil divorce has become available. It’s called collaborative law. And young lawyers practicing family law should take note of it. As a society, we realize that the process of burying a dead marriage often is unnecessarily painful and scarring to husbands, wives and their children. We know that fighting in divorce court about property, custody and support almost always is emotionally draining, expensive and complicates post-divorce communication. As a helping professional, a lawyer has an obligation to try to minimize the collateral damage that occurs when one or both spouses decides that a marriage no longer works and wants a divorce. The Texas Legislature, whatever its other faults may be, has helped the lawyer do his or her job minimizing that pain by making Texas the first state to recognize by statute the new collaborative law technology. Under Texas’ collaborative law statute, Family Code ��6.603 and 153.0072, the husband, the wife and their lawyers agree to an open, transparent process of negotiating the terms to end a marriage. Rather than hearings in divorce court to settle their differences, the parties sit together with their lawyers in a series of private conferences. The overall goal is to settle property, custody and support issues in a way that recognizes and honors the interests of each spouse and gives the two families that result from the divorce maximum chances of success and happiness. The hammer and the glue under the Texas collaborative law statute is the requirement that after the divorcing couple commits to collaborative law, neither can ask the court for help against the other spouse without firing his or her collaborative law lawyer and getting another lawyer for court. Both parties and both attorneys sign a collaborative law participation agreement, prescribed by the statute, that commits all the parties to open and polite communication, to voluntary and complete exchange of financial and other information and to respect the other’s interests. Either party can stop the collaborative process, but both attorneys are then prohibited from continuing on the case. Neither of the collaborative lawyers can be subpoenaed as a witness or for discovery. Of course, the lawyer-client relationship remains, and the collaborative lawyer cannot disclose to the opposing litigation lawyer or to his or her client, confidences or information that had been given in the lawyer-client setting. Removing the possibility of asking the court to resolve the problems the parties run into during negotiations can change the tone of discussions for the better, if all four pieces of the puzzles — the spouses and their attorneys — act in good faith. Husband, wife and their lawyers commit to look at the underlying interests each party has to recognize that many of their basic interests, such as economic security for their children, are the same. Both the lawyers and the two clients must be honest. The challenge is to work out solutions that maximize satisfaction of the parties’ shared interests and deal effectively with their conflicting interests. The collaborative law process is only a few years old, and I have had bad as well as good experiences using it with clients. Part of the problem is that some lawyers, trained as they are to be aggressive advocates and perhaps afraid of being seen as soft, have not shifted to the collaborative approach even after their clients have committed to it. If the collaborative lawyer has reason to believe that his or her client is withholding pertinent and necessary information, the collaborative lawyer has the duty to terminate the process. There is excellent training in collaborative law in Texas now for young family lawyers, and I suggest that most attorneys will increase their long-term satisfaction in practicing law by becoming competent in collaborative law techniques and using them in family disputes and other cases. I’m also confident that young attorneys often will get much better overall results for their clients through intelligent application of the new, but old, collaborative law tools. Louise B. Raggio has been in private practice as a partner in Raggio and Raggio in Dallas since 1956. In 1979, she was the first woman elected as a director of the State Bar of Texas in its 100-year history. She has served on numerous boards and won many awards for community service and leadership. “Voice of Experience” runs monthly in Texas Lawyer.

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