People who come to our office looking to start the divorce process are often surprised to learn that there are alternatives to litigating in court. For clients who can maintain a good working relationship with their spouse and have no history of domestic violence in their current marriage, one of those alternatives could be collaborative law. What is Collaborative Law? Collaborative law seeks to prevent unnecessary discord by avoiding the uncertainty of the courtroom and giving the parties the power to resolve their divorce together, as part of the same team.
The collaborative approach to family law has grown substantially in popularity over the last decade or so. On April 1, 2019, the Tennessee Supreme Court showed its support for collaborative law by passing Tennessee Supreme Court Rule 53. The rule standardizes how collaborative family law is practiced in Tennessee.
Section 1 of TN Supreme Court Rule 53 defines collaborative law as a “voluntary, contractually based alternative dispute resolution process for parties who seek to negotiate a resolution of their matter.” It also states that parties must be represented by collaborative lawyers throughout the process. They must sign a collaborative law participation agreement stating that they will not seek judicial resolution of a dispute during the collaborative law process.
It is important for clients to understand that the collaborative law process is entirely voluntary; no one can be forced to participate in it, whether by the courts or by their spouse. The decision whether to collaborate or litigate is a deeply personal one, and much depends upon the specific circumstances of the parties. Attorneys should be able to walk their clients through the pros and cons of collaborative law and help them determine whether this is the right choice for them.
Once a couple does decide to pursue the collaborative route, they will sign a participation agreement. Under Section 6 of TN Supreme Court Rule 53, if a divorce or other proceeding has already been filed with the court, the parties must then give notice to the court that a collaborative law participation agreement has been signed. That notice will operate as an application for a stay of all courtroom proceedings.
The participation agreement is central to the collaborative law process. In Tennessee, participation agreements are governed by Section 4 of TN Supreme Court Rule 53. Participation agreements lay out the ground rules for the collaborative law process and can include anything the parties choose to agree on, so long as it does not conflict with Rule 53. The only true requirement is a “withdrawal provision,” which simply states that, if the parties cannot resolve a dispute themselves and must turn to the courts for a resolution, both parties’ attorneys must withdraw from the case. The purpose of the participation agreement is to remove the possibility of going to court from both attorneys’ minds, so that they can focus entirely on collaborative methods of advocating for their clients’ needs. However, if, during the course of the collaborative process, it becomes necessary for either party to seek or defend an emergency order from the courts to protect the health, safety, welfare, or interest of the party or their family, their collaborative attorney may assist them in seeking or defending that order until successor counsel can be procured.
An open exchange of information is also an important feature to any collaborative law matter. Section 12 of TN Supreme Court Rule 53 states that both parties “shall make timely, full, candid, and informal disclosure of information related to the collaborative family law matter without formal discovery.” The information parties are called on to disclose varies depending on the situation, but may include information about personal and marital assets, debts, and anything having to do with the couple’s children. Any person considering the collaborative family law process must be prepared to disclose all of these types of information, and to sign a sworn statement verifying that they have fully disclosed all property and all liabilities. They also must be willing to be open in their negotiations with the other side, with an eye toward establishing an acceptable compromise rather than “winning” their divorce or other family law matter.
Because collaborative family law focuses so much on openness and collaboration, it is not useful to every couple. For couples that have a history of domestic violence, have an unequal power dynamic, or just struggle to work together, even in a professional sense, another form of alternative dispute resolution or even traditional litigation may be the better option. However, for those couples who are able to cooperate meaningfully, collaborative family law can eliminate a good deal of unnecessary tension and uncertainty.
TN Supreme Court Rule 53 is an excellent resource for both attorneys and the public. It provides a uniform understanding of how the collaborative family law process should be approached in this state. It becomes increasingly vital as more divorcing couples in Tennessee choose collaborative family law over litigation.
If you are considering your options for divorce or another family law matter and think that collaborative law might be right for you, call Held Law Firm and ask for Melanie Hogg, our resident collaborative law attorney.
Chelsea Price is a law clerk at Held Law Firm.
