Form 15-3

This form is written for a divorce case but may be reworded as appropriate for any other family law sit­uation.

Collaborative Law Participation Agreement

Purpose

The undersigned parties, [name of party A] and [name of party B] (the “parties”), agree as follows:

It is our intention to resolve through the collaborative law process, without the interven­tion of a court, the following matter: [description of matter to be resolved]. This agreement is being entered into pursuant to title 1–A of the Texas Family Code.

Beginning and Concluding Collaborative Process

The collaborative process under this collaborative law participation agreement begins when we sign this agreement, and it concludes on (1) resolution of the collaborative matter as evidenced by a signed writing [include if applicable: and entry of a final decree of divorce] or (2) termination of the collaborative process. A party may request a court to approve a resolu­tion of all or part of the collaborative matter, as evidenced by a signed writing. Such a request, if made with the consent of the parties, does not conclude the collaborative process.

Termination of Collaborative Process

Participation in the collaborative process is voluntary, and any party has the unilateral right to terminate the process, with or without cause, at any time. Termination of the collabo­rative process occurs when (1) a party gives written notice to the other party that the process is ended, (2) a party begins a judicial proceeding related to the collaborative matter without the agreement of all parties, or (3) a party discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party. Notwithstanding the previous provi­sion, the collaborative process can continue if, not later than thirty days after discharge or withdrawal of a collaborative lawyer, the unrepresented party engages a successor collabora­tive lawyer, the parties consent in writing to continue the process and amend this agreement to identify the successor collaborative lawyer, and the successor collaborative lawyer confirms in writing his or her representation of a party in the collaborative process.

Communication

We will effectively and honestly communicate with each other with the goal of effi­ciently and economically settling the terms of the dissolution of the marriage. All written and oral communications between us will be respectful and constructive, and we will not make accusations or claims not based in fact. We will make timely, full, candid, and informal dis­closure of information related to the collaborative matter without formal discovery and will promptly update information that has materially changed.

Settlement meetings will be focused on economic [include if applicable: and parenting] issues and the constructive resolution of those issues. We will not engage in unnecessary dis­cussions of past events.

In accordance with the Texas Family Code, we will maintain the confidentiality of all oral and written communications relating to this matter. All oral communication and written material used in or made a part of the collaborative law process will be admissible or discov­erable only if admissible or discoverable independent of this process. This paragraph does not apply to reports of abuse or neglect required by law, agreed formal discovery, sworn docu­ments prepared in this matter, a fully executed collaborative law settlement agreement, or evi­dence of fraud.

To maintain an objective and constructive process, we will discuss settlement of divorce issues with each other only in the settlement conference setting. We will not discuss these matters with each other outside the conference setting except as mutually agreed by us and our attorneys. We understand that, from time to time, the attorneys will meet together to plan agendas for settlement meetings, but no agreements will be made by the attorneys on our behalf without our consent.

We acknowledge that inappropriate communications regarding settlement of our divorce can be harmful to our minor child[ren]. Communication with the minor child[ren] regarding these issues will occur only as agreed by us and our attorneys. In resolving issues about sharing the enjoyment of and responsibility for the child[ren], we, the attorneys, and the therapists will make every effort to reach amicable solutions that promote the child[ren]’s best interests.

We will act quickly to mediate and resolve differences related to the child[ren] to pro­mote a caring, loving, and involved relationship between the child[ren] and both parents. We will not seek a custody evaluation while the matter is a collaborative law case.

We will insulate the child[ren] from involvement in our disputes. We will attend [name of parent education course] [include if applicable: with the child[ren] in a county where the program is available] as soon as possible.

We authorize the use of unencrypted email, facsimile, or any other electronic communi­cations to relay information and deliver documents in the collaborative law process. Joint communications of agendas, minutes, drafts of documents, and agreements may be sent simultaneously to us, the attorneys, and any experts or advisors.

Neutral Experts and Neutral Allied Professionals

If neutral experts or neutral allied professionals are needed, we will retain them jointly unless we agree otherwise in writing. They will be used for communication facilitation, settle­ment-option development, valuation, cash-flow analysis, tax issues, [include if applicable: par­enting issues,] and any other issue that requires expert advice or recommendations. We will agree in advance how they will be paid.

Any such neutral expert or neutral allied professional may not be called by either of us as a witness, and their written materials prepared specifically for the collaborative law process are inadmissible if we fail to reach settlement through the collaborative law process unless we and the neutral expert or neutral allied professional agree otherwise in writing after the collab­orative law process is terminated.

If this matter becomes adversarial, any expert used in the collaborative law process may be called by either of us as a witness but may not be presented in court as a jointly hired neu­tral expert unless we agree otherwise in writing.

Either of us may use a consultant for assistance in gathering or organizing information as long as all such information gathered or organized by the consultant is made available to the other party as soon as it becomes available.

Information

We will deal with each other in good faith and will promptly provide all necessary and reasonable information requested. No formal discovery procedure will be used unless specifi­cally agreed to in advance. [Include if applicable: We will be required to sign a sworn state­ment making full and fair disclosure of our income, assets, and debts (a sworn inventory and appraisement) unless we agree otherwise in writing.]

We acknowledge that, by using informal discovery, we are giving up certain investiga­tive procedures and methods that would be available to us in the litigation process. We give up these measures with the specific understanding that we will make to each other a complete and accurate disclosure of all assets, income, debts, and other information necessary for us to reach a fair settlement. Participation in the collaborative law process is based on the assump­tions that we have acted in good faith and that we have provided complete and accurate infor­mation to the best of our ability. [Include if applicable: We will make full disclosure of all material information concerning our children.] Refusal to be honest or failure to disclose such information shall be grounds for one or both collaborative attorneys’ withdrawal from repre­sentation or termination of the collaborative law process.

Enforceability of Agreements

We may agree to the entry of temporary orders. On request of either party or as required by local rules, temporary mutual injunctions shall be submitted to the Court for entry.

If we require a temporary agreement for any purpose, the agreement will be put in writ­ing and signed by us. [Include if applicable: If either party withdraws from the collaborative law process, the written agreement may be presented to the court as an agreement enforceable under rule 11 of the Texas Rules of Civil Procedure, which may become a court order and, if required by either party, shall be in the form of an agreed temporary order and entered by the court.] A collaborative attorney shall be permitted to present to the court a written agreement that is signed by both parties and the collaborative attorneys for entry of a temporary order.

We may agree in writing to the resolution of any or all issues presented by our case. Any written agreement that is signed by both parties and their collaborative attorneys may be filed with the court as a collaborative law settlement agreement in accordance with section 15.105 of the Texas Family Code or as a rule 11 agreement, which the court may make retro­active to the date of the written agreement and which may be made the basis of a court order.

We understand and agree that neither collaborative attorney shall be permitted to go to court to enforce any written agreements between us. Should a party seek to enforce any writ­ten agreement over the objection of the other party, we must withdraw from the collaborative law process. In such event, the collaborative attorneys shall withdraw as attorneys of record and, if required, shall consent to the substitution of trial counsel.

Legal Process

Attorneys:      The attorneys do not represent both clients. While the respective attor­neys are committed to negotiation in an atmosphere of honesty and integrity, neither party can look to the attorney representing [his or her/his/her] spouse to provide legal advice or infor­mation, and each attorney must continue to have an obligation to represent that attorney’s cli­ent diligently and cannot be, or represent himself or herself to be, representing the legal interests of the other party.

[Name of party A’s attorney] does not represent [name of party B]. [Name of party B’s attorney] does not represent [name of party A]. Nothing in this agreement should be interpreted as obligating either attorney to violate his or her ethical obliga­tions to represent his or her client’s best interests.

Court Proceedings:      We understand that our attorneys’ representation is limited to the collaborative law process and that neither attorney can ever represent one of us in court in a proceeding against the other spouse.

If the collaborative law process terminates, both attorneys will be disqualified from rep­resenting either client, and consultants will be disqualified as witnesses and the consultants’ work product will be inadmissible as evidence unless we agree otherwise in writing.

Notwithstanding the understandings in the previous paragraph, [[name of party A] has/[name of party B] has/we each have] an annual income that qualifies [her/him/each of us] for free legal representation under the criteria established by the law firm[s] with which [her/his/our respective] collaborative lawyer[s] [is/are] associated. [[Name of party A] authorizes/[name of party B] authorizes/we authorize] another lawyer in the law firm of the [respective] law firm[s] to represent [her/him/us] without a fee in the collaborative matter or a related mat­ter, as long as the collaborative lawyer is isolated from participation in the matter through pro­cedures within the law firm that are reasonably calculated to isolate the lawyer from participation.]

After this date, no motion or document will be prepared or filed without our agreement, other than a [joint petition for divorce/petition for divorce and an answer] [include if applica­ble: and mutual injunctions]. Service of citation will not be required. We will not seek judicial intervention during the collaborative law process, except for withdrawal or substitution of counsel or for the limited purpose of obtaining or defending an emergency order to protect the health, safety, welfare, or interest of a party or a member of the party’s family, unless we agree otherwise.

Withdrawal from Collaborative Law Process:      If one of us decides to withdraw from the collaborative law process, that party will give prompt written notice to the court, if appropriate, and to the other party through [his or her/his/her] attorney. On withdrawal from the collaborative law process there will be a thirty-day waiting period (unless there is an emer­gency) before any court hearing, to permit each of us to retain another attorney and make an orderly transition. All temporary agreements will remain in full force and effect during this period. The intent of this provision is to avoid surprise and prejudice to the rights of the other party. Either party may bring this provision to the attention of the court in requesting a post­ponement of a hearing.

Withdrawal of Counsel:      If one of us chooses to withdraw from the collaborative law process by seeking court involvement, both attorneys shall immediately withdraw from the representation and notify the court that the collaborative law process has been terminated. Further, we understand that neither collaborative attorney (or any attorney associated in the practice of law with him or her) may serve as litigation counsel in this case thereafter. Both attorneys will cooperate in transferring the file to new counsel and are authorized to disclose information to prospective future counsel on their respective client’s request. Nothing in this agreement will preclude the withdrawal of counsel for a party and substitution as counsel of another collaborative attorney, and such withdrawal and substitution will not terminate the collaborative law process.

Understandings

We understand there is no guarantee that the collaborative law process will be success­ful in resolving our case. We understand that the process cannot eliminate concerns about the disharmony, distrust, and irreconcilable differences that have led to our current conflict. We understand that we are still expected to assert our respective interests and that our respective attorneys will help each of us to do so.

We further understand that we should not lapse into a false sense of security that the process will protect each of us. We understand that, although our collaborative attorneys share a commitment to the process described in this agreement, each attorney has a professional duty to represent his or her own client diligently and is not the attorney for the other party.

Attorney’s Fees and Costs

We understand that our attorneys and consultants are entitled to be paid for their ser­vices, and the first task in a collaborative matter is to ensure payment to each of them and to make funds available for this purpose. We will make funds available from our community or separate estates, as needed, to pay these fees. We understand that, if necessary, one party may be asked to pay both attorneys’ fees from community property managed solely by [him or her/him/her] (for example, [his or her/his/her] salary) or from that party’s separate-property funds. To the extent possible, all attorney’s fees and costs (including expert’s fees) incurred by both parties shall be paid in full before entry of an agreed final decree of divorce.

Participation with Integrity

We will work to protect the privacy, respect, and dignity of all involved, including par­ties, attorneys, and consultants.

We will maintain a high standard of integrity. Specifically, we will not take advantage of each other or of the miscalculations or mistakes of others; instead, we will identify and cor­rect them.

Acknowledgment

We acknowledge that we have read this agreement, understand its terms and conditions, and agree to abide by them. We acknowledge that we have chosen the collaborative process after discussing with our counsel the material benefits and risks of collaborative law as com­pared to the material benefits and risks of other reasonably available alternatives for resolving this matter. We understand that by agreeing to this alternative method of resolving the divorce issues, we are giving up certain rights, including the right to conduct formal discovery, the right to participate in formal court hearings, and other rights provided by the adversarial legal system.

   
[Name of party A]
[Address]
Signed on       

   
[Name of party B]
[Address]
Signed on       

[Name of attorney for party A] confirms representation of [name of party A] in the col­laborative process hereunder.

   
[Name]
Attorney for [name of party A]
State Bar No.:
[Email address]
[Address]
[Telephone]
[Fax]
Signed on       

[Name of attorney for party B] confirms representation of [name of party B] in the col­laborative process hereunder.

   
[Name]
Attorney for [name of party B]
State Bar No.:
[Email address]
[Address]
[Telephone]
[Fax]
Signed on