A collaborative divorce is a non-adversarial way for clients and a team of trained professionals to resolve divorce issues without going to court. Rather than fight in court and air their dirty linen in public, the clients and collaborative team work together to resolve issues through interest-based negotiation under the protection of a collaborative agreement.
Confidentiality and Transparency. A collaborative divorce offers confidentiality and transparency—confidentiality because nothing said during the collaborative process is admissible in court and transparency because the clients agree to produce all relevant financial and personal information voluntarily rather than engaging in expensive discovery disputes. Confidentiality and transparency are important legal rights in a collaborative divorce. Confidentiality protects private information shared in joint meetings because all communications are private. A collaborative divorce happens outside the courtroom and the client’s private personal and financial information are never disclosed to the public. In contrast, a litigated divorce is open to the public and the client’s finances, business affairs, and dirty linen are aired for all to see The purpose of a collaborative divorce is to reach a fair settlement of all issues and the best way to do that is to have all the information available to both clients and the team. Because the collaborative divorce process is transparent and confidential, the clients share all relevant information because they know it will be kept private and not broadcast to the public or introduced at trial.
Confidentiality and Privilege. Confidentiality and privilege in a collaborative divorce are guaranteed by the Texas Collaborative Family Law Act. The Texas legislature decided that the collaborative divorce process should enjoy strong protection so no court can demand the disclosure of privileged collaborative information except under limited circumstances. And, the privilege belongs to the collaborative process rather than the parties so they alone can’t waive it. A collaborative communication is confidential to the extent agreed by the parties. The Texas Collaborative Family Law Act is unique because it allows the parties to agree that even their conduct and demeanor during meetings and communications which occurred before signing the Collaborative Family Law Participation Agreement are confidential. Only if the information is discoverable by independent means may it be used in a court of law. The privilege is similar to the broad legal protection afforded communications during mediation.
Limits of Privilege. The Texas Collaborative Family Law Act limits the scope of privilege because it does not apply to communications contained in a collaborative agreement in writing and signed by the parties. This means a signed collaborative settlement agreement is discoverable and can be introduced in court. Additionally, the privilege can be waived if all parties and non-party participants agree. Finally, the usual limits on privilege apply when there has been a threat of bodily harm or commission of a crime, abuse is suspected, there’s a claim of professional misconduct, an allegation of fraud, a dispute about attorney fees or a claim against a third party who was not privy to the collaborative family law agreement. However, the attorney-client privilege remains intact, even within the collaborative divorce process. A client can instruct his or her attorney to not disclose some information. However, if the attorney feels the client is misleading the other side, he or she is obligated to withdraw from representation.
Confidentiality in Collaborative Divorce. Unlike litigation, a collaborative divorce is totally confidential. If you want to keep your business and private affairs out of the public arena, find yourself an attorney trained in the collaborative divorce process. When the parties sign the Collaborative Law Participation Agreement, they pledge to maintain the confidentiality of oral or written communications between the parties, their attorneys and neutral professionals. These communications are not subject to disclosure in court and can’t be used as evidence during litigation. If the parties opt out of the collaborative process and proceed to litigation their communications, actions and demeanor remain private and cannot be used as evidence in court.
Professionals with a reputation to protect, wealthy individuals with large estates they wish to keep private, and anyone who has committed an indiscretion, such as adultery, will appreciate the benefit of keeping their personal lives out of the court room by agreeing to a collaborative divorce. This is by far the strongest benefit for wealthy and professional clients.