This article is written by S. Camille Milner, a Denton-based collaborative lawyer and the current Vice-President of the Collaborative Law Institute of Texas’ board.
In a recent article on the Collaborative Law Institute of Texas blog, Linda Solomon wrote about conscious uncoupling, a term created by Los Angeles therapist and author Katherine Woodward Thomas, which came into the public sphere when Gwyneth Paltrow announced her divorce to Chris Martin on her Goop website.
This publicity has resulted in a number of additional articles popping up, including one called “The New Division” in DuJour Magazine, a fairly new publication that the New York Times calls “A New Magazine for the Wealthy.”
In the article, author Lydia Dallett considers the trend for couples, who own businesses together or just don’t want to go through the ugliness of a divorce, to “split permanently — without resorting to a divorce.” Dallett cites authorities like divorce Laura Miolla, who says she sees couple do this all the time. Dallett quotes divorce lawyers and coaches who report that “rather than face the cost, gossip, and embarrassment of divorce, couples are deciding to stay together [in name only].” This enables many to be more successfully continue as business partners and co-parents. The article quotes a recent Stanford study that “…found that a CEO’s divorce can negatively impact company performance, drive down the price of shares and even result in the CEO retiring prematurely.”
Dallett offers “legal separation” as a popular option where couples do not want to divorce, but want a more formal division of their finances so that they are not having to worry about being able to trust their spouse on the financial front.
In Texas, there is no “legal separation,” but there is a tool that is available, called a Marital or Partition/Exchange Agreement, which can meet all or most of the goals of a legal separation. With a Marital Agreement, the parties basically do a financial divorce, dividing the property they currently own and not creating any future community property. By doing this, the parties can either stay married indefinitely or when they do divorce, the property issues in the case have already been decided, privately. Unlike a divorce petition, a Marital Agreement is a contract that is not required to be filed with the Court. In some cases, the parties enter into this agreement to prevent an antagonistic divorce when the time is right to divorce; others enter into this agreement to take the financial issues off the table and then work on their relationship issues, sometimes resulting in reconciliation.
In my opinion, the best method for handling a Marital Agreement (or a divorce) is through the Collaborative Law Process. In the Collaborative Process, each party has his or her own attorney, there is full disclosure of all assets and liabilities, and the parties work together to reach an agreement. Then, they can live under that agreement for the rest of their lives, modify it if they choose to, or if they ever do decide to divorce, it can be done with more privacy, more civility, and much, much less cost.
DuJour quotes Ani Mason, a divorce attorney who specializes in high net worth divorces, who notes, “In my experience, people who go through a less adversarial process are more open to being cooperative and creative in crafting a settlement, and so you end up with results that are more beneficial to both spouses.” The less adversarial process of Collaborative Law provides an option for most legal matters that is better for nearly all clients, regardless of their net worth.
If you are interested in more information about Marital Property Agreements or Collaborative Law, please contact one of the professionals with the Collaborative Law Institute of Texas.