Collaborative Law in Austin, Texas

What collaborative law actually is

Collaborative law is a way of settling a divorce, or a case about children, without asking a judge to decide anything. You and the other person each hire your own lawyer.

Everyone signs an agreement to stay out of court, and then the four of you meet, usually several times, and work through the whole matter in those meetings. No motions. No hearings. No discovery deadlines. The lawyers are there to advise their own client and to draft, not to argue in front of anyone.

Texas put this process into statute. Chapter 15 of the Family Code, the Collaborative Family Law Act, has governed it since 1 September 2011. The policy behind it is to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship.

It covers the same ground a family court covers: divorce and marital property under Title 1, and conservatorship, possession, access and child support under Title 5.

Two facts about how it starts are worth holding on to. Section 15.102 begins the process when the parties sign the participation agreement, so nobody drifts into it by accident and no lawsuit has to be filed first.

And it cannot be started for you. Because that signature is what begins it, the process exists only if both sides choose it, and it continues only while both sides still want it.

Two people, two lawyers. Victoria acts for one of you.

This is the point most often misunderstood, so it comes early. In a collaborative case Victoria Broussard represents one party. The other party must retain their own collaborative lawyer. That is a requirement of Texas law, not a firm policy and not a way of adding a second set of fees.

The Family Code defines the collaborative process as one in which the parties are represented by collaborative family law lawyers, and defines a collaborative lawyer as a lawyer who represents a party.

The participation agreement has to identify the lawyer acting for each party, and each lawyer has to confirm in that agreement whom they represent. To be entitled to judgment on the final settlement agreement, it has to be signed by each party and by each party’s collaborative lawyer.

Each of those provisions assumes a lawyer on each side. If only one of you has a lawyer, it is not a collaborative family law process as the statute defines it. Do not read that as a safe halfway house.

Where an agreement falls short of the statutory requirements, section 15.116 lets a court find that the two of you meant to enter a collaborative process, and apply the disqualification rule and the privilege anyway. The clean answer is two lawyers or a different process.

This is the reverse of what Victoria does as a mediator. A mediator is, by statute, an impartial person who facilitates communication between the parties and may not impose her own judgment on the issues. She serves both of you, advises neither, and does not draft your final papers.

A 2008 Texas ethics opinion holds that a lawyer may not agree to serve both as the mediator in a divorce and as the lawyer who prepares the decree and the other documents needed to carry the agreement into effect.

Preparing those documents is legal service, and doing it for both of you would mean acting for opposing parties in the same litigation, which the rules do not permit.

So the distinction is simple. In mediation, nobody in the room acts for you. In collaborative law, somebody does, and somebody else acts for the other side. Victoria can take either role.

She cannot take both in the same matter, and she cannot be the collaborative lawyer for two people. If what you want is one neutral professional helping you both reach terms, that is mediation, and it is a different service.

What you commit to before you sign

If the collaborative process does not produce an agreement, Victoria cannot take your case to court. The Family Code disqualifies a collaborative lawyer from appearing before a tribunal to represent a party in a proceeding related to the collaborative matter, and it extends that disqualification to every lawyer in the same firm.

Two things follow, and both should be said plainly. The Alchemy Attorneys is a sole practice, so there is no colleague down the corridor to hand the file to. If your case breaks down, you retain new counsel and pay them to learn it.

There is a narrow statutory exception allowing another lawyer in a disqualified lawyer’s firm to act without a fee for a party whose income qualifies them for free representation under that firm’s criteria, but it requires another lawyer in the firm. There is not one here, so that exception offers you nothing.

The rule has edges worth knowing. It bars appearing in court in a proceeding related to that matter, meaning a matter involving the same parties, transaction or occurrence, nucleus of operative fact, dispute, claim or issue. It is not a bar on all future work of any kind. And the statute carries two exceptions.

Victoria may ask a court to approve an agreement that came out of the process, so a case that settles keeps its lawyer through to the signed order.

She may also seek or defend an emergency order to protect the health, safety, welfare or interest of a party or a family, but only where a successor lawyer is not immediately available, and that exception stops applying once a successor lawyer is retained or reasonable protective measures are in place.

Texas law requires that all of this be covered before anything is signed. Section 15.111 requires a prospective collaborative lawyer to assess with the prospective client whether the process suits the matter, to provide enough information to weigh its benefits and risks against the reasonably available alternatives, which the statute names as litigation, mediation, arbitration and expert evaluation, and to advise specifically that seeking court intervention ends the process, that either party may terminate at any time with or without cause, and that the lawyer and her firm are then disqualified.

That assessment comes before any agreement is signed, and it is where this work starts. The first conversation is not a sales meeting.

How the process runs

It starts with the participation agreement. That agreement must be in a record, signed by both parties, and it must state your intention to resolve the matter collaboratively, describe the nature and scope of what is covered, identify each party’s collaborative lawyer, and carry each lawyer’s confirmation of representation.

It must also include a provision suspending court intervention while the process runs and, unless you agree otherwise in writing, a provision for jointly engaging any professionals, experts or advisers serving in a neutral capacity.

That joint engagement is a real feature: where a case needs a financial professional to value a business, or a child specialist to build a parenting plan, that person is hired by both sides together rather than as one side’s witness.

There is no formal discovery. Instead, on another party’s request, each party must make timely, full, candid and informal disclosure of information related to the matter, and must promptly update any previously disclosed information that has materially changed.

The core duty is triggered by a request rather than being a standing obligation to volunteer everything, though anything already disclosed must be updated without being asked.

The two of you can define the scope of that disclosure, and participation agreements commonly widen it. What the statute does not give you is enforcement: no subpoenas, no depositions and no sanctions inside the process.

Either party can end it at any time, with or without cause. It can also end by conduct, and the wording here is worth reading closely. Filing a pleading, a motion or a request for a conference with the court, without everyone’s agreement, terminates the process by operation of the statute.

So does initiating an order to show cause, requesting that the proceeding be put on the court’s active calendar, or taking similar action requiring notice to be sent to the parties, and on the wording of the statute those do not turn on whether the other side agreed.

The one safe joint step is asking the court to approve a resolution you have both consented to in a signed record.

If a lawyer is discharged or withdraws, the process ends unless, within 30 days of that notice being sent to the parties, the unrepresented party engages a successor collaborative lawyer and, in a signed record, all of you reaffirm the agreement, amend it to identify that lawyer, and that lawyer confirms the representation.

If a suit is already on file, you do not have to dismiss it. Filing notice of the participation agreement stays the proceeding, so the case number and filing date survive.

Where the court is notified no later than the 30th day before a proceeding, it may not set hearings, impose discovery deadlines, require compliance with scheduling orders or dismiss the case until it is told the process did not settle.

If the matter has not settled, a status report is due by the 180th day after the participation agreement was signed, and again by its first anniversary with a motion for continuance, which the court must grant if the report says you want to carry on.

If the process has not produced a settlement by the second anniversary of the date the proceeding was filed, the court may set the case for trial on the regular docket or dismiss it without prejudice.

Privacy, and the limits of it

Privacy is why many people look at this route, so it is worth being precise. Two different protections are in play, and they are not the same thing.

Confidentiality comes from your agreement. A collaborative communication is confidential to the extent you agree in a signed record, or to the extent some other law makes it so.

Conduct and demeanour in the meetings, and communications about the matter that took place before the participation agreement was signed, are covered only if you agree in a signed record that they are. Privacy here is built by the document you sign, which is one reason that document deserves care.

Privilege comes from the statute itself. A collaborative communication is privileged and not subject to disclosure, and neither the parties nor nonparty participants may be required to testify about it in a proceeding related to or arising out of the matter.

That is what allows someone to put an offer on the table without it being read back to them later. If you have to change lawyers, you may pass privileged communications to successor counsel and they stay privileged, subject to whatever your participation agreement says about confidentiality.

Two limits matter more than the rest. Material that is admissible or discoverable independently of the process stays admissible and discoverable. A tax return, a bank statement or a valuation does not become protected because it was handed over in a collaborative meeting, and nothing can be sheltered by routing it through this process. And the privilege carries a list of exceptions.

It does not cover the agreement resulting from the process where that agreement is in a record signed by all parties, a communication all parties have expressly waived, a threat or statement of a plan to inflict bodily injury or commit a crime of violence, a disclosure of a plan to commit a crime or to conceal an ongoing crime, a report of suspected child abuse or neglect, a report of abuse, neglect or exploitation of an elderly or disabled person, or communications offered to prove or disprove professional misconduct or a claim that a settlement was procured by fraud, duress or coercion. The list also reaches disputes about legal fees and certain claims against third parties.

When this is not the right process

Collaborative law does not suit every case, and sometimes the honest answer is that another route fits you better. These are the situations where it usually does not work.

You suspect assets are being hidden. The process runs on candour and has no tool to compel it. There is no subpoena, no deposition and no sanction available inside it, and the practical remedy for inadequate disclosure is to end the process.

By then the money is spent and your lawyer is gone. If you believe there is an undisclosed account, a business being deliberately understated or crypto that nobody is mentioning, litigation gives you tools that this process does not.

There is a history of family violence. Before anything is signed, and where the other prospective party is a member of your family or household or someone you have or have had a dating relationship with, a prospective collaborative lawyer is required to make reasonable inquiry about whether there is a history of family violence between you. Victoria will ask.

If she reasonably believes there is such a history, she may not begin or continue a collaborative process unless you ask to carry on and you and Victoria work out together what reasonable steps, if any, could address the concern. Sometimes the answer is that this is not the right process, and that a protective order is the more urgent matter.

You need something decided now. The process does not stop a court from acting in an emergency. Under section 15.104 a tribunal may issue an emergency order to protect the health, safety, welfare or interest of a party or a family.

Whether one is granted is the court’s decision, not ours. If it is granted without everyone’s agreement, the collaborative process terminates by operation of the statute and the disqualification follows.

The other party will not commit. Both sides have to want this, and both have to retain a collaborative lawyer. If they will not, there is no process to run. And if the two of you already agree on everything and simply need the paperwork done properly, an uncontested divorce is a shorter route.

One thing this page will not tell you is that collaborative law is always cheaper or faster. Sometimes it is, because it removes discovery, motions and hearings, which is where much of the cost of litigation sits.

But a case that runs for months and then fails costs more than one that went to mediation at the start. How fees are set here is covered at the first conversation, once the scope is clear and once you and Victoria have both concluded the process fits.

Turning the agreement into a court order

An agreement that never becomes an order is worth very little, particularly where children are involved. A private understanding about possession or support is not enforceable the way a signed order is, and it does not bind a court later.

A collaborative settlement agreement is enforceable in the same way as a written settlement agreement under section 154.071 of the Civil Practice and Remedies Code. The statute then sets out two precise conditions for obtaining judgment on it.

First, the agreement must include a prominently displayed statement, in boldfaced type, capitalised or underlined, that the agreement is not subject to revocation. Second, it must be signed by each party and by each party’s collaborative lawyer. Meet both and a party may obtain judgment on the agreement.

From there the terms are drafted into a decree or an order and presented to the judge, and this is one of the two appearances the disqualification rule expressly permits.

Where the case is a divorce, the usual Texas waiting period still applies: a court may not grant a divorce before the 60th day after the date the suit was filed, subject to narrow exceptions where there is a family violence conviction, deferred adjudication or an active protective order.

Each party must also file notice with the court promptly when the process concludes, which lifts the stay, and that notice may not specify any reason for the termination. If the process ends without an agreement, the judge is told that it ended, and nothing more.

Is this the right process for you?

A confidential consultation, virtual or in Austin. Come with a sense of what you own, what you owe, and what the arrangements for the children look like now. You will leave knowing whether collaborative law fits your situation, or whether something else does.

Only one of you should make contact. Victoria would act for one party, and hearing from both of you could prevent her from acting for either. If the other party is also considering collaborative law, they should approach their own collaborative lawyer.

This page describes Texas law in general terms. It is not legal advice about your situation. Your message is confidential. Submitting the contact form does not create an attorney-client relationship.

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