Thomas P. Carnes
(830) 997-7790 968 Braeutigam Road
Fredericksburg, Texas 78624

Thomas P. Carnes, A Civil Trial Lawyer Serving the Texas Hill Country
Practice Areas

Family Law

Alternative Dispute Resolution & Collaborative Divorce

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Collaborative divorce is a relatively new mechanism, which takes a negotiated settlement to a whole new place. In a collaborative divorce, the Court is not involved in the divorce in any way other than approving the collaborative divorce agreement. There are no hearings; instead there are meetings between the parties and their respective attorneys. These meetings generally alternate between the lawyers office, and are most effectively single issue and relatively short. In one meeting the parties might discuss and reach agreements concerning a key "kid" issue – such as private schooling and how to pay for it. In other meeting they might reach agreements as to how to divide their respective retirement accounts or, alternatively, how to structure the financial settlement so that they can stay out of them entirely. In the end, there is a collaborative divorce agreement, containing agreed provisions on all of the issues in the divorce, which the court approves.

So when is collaborative divorce a good idea? First of all it, requires two thoughtful parties and attorneys who understand and are trained in the collaborative process and who can all work together reasonably well. Second, it requires that there be no severe personal issues with regard to either or both parties. Neither addiction, personality disorders, nor the presence of family violence are suitable issues for collaborative divorce. In such a divorce there needs to be intervention, most appropriately by a court. But in many cases collaborative is a good alternative to a contested divorce through the courts. The parties have to both commit to the process, from the outset. The "hammer" that keeps them committed is that, if they fail to reach an agreement, and have to resort to the courts for their divorce, both attorneys have to withdraw and the clients must start over. This is a very effective incentive to keep both parties at the table and working.

Less often used, but also very effective in the right case, is arbitration. In arbitration, the parties consent to trial by a party who is not the Judge of the court in which their case is pending. An arbitrator is generally another lawyer, who the parties appoint as their “rent a judge.” Whether this is an attractive option will depend on several things, including the quality of the Judge, the delay in the Judge’s court to actually getting to trial, and the desire of the parties for greater privacy than that available in the Courts. For busy professionals, a key advantage is that arbitration enables the parties to virtually lock in a trial date. This is not the case in many jurisdictions, particularly in the urban counties with their overcrowded dockets.

Tom Carnes has participated in many mediations, as an advocate and as a mediator, several hotly contested and complex arbitration proceedings, and has significant experience in collaborative divorce. While he is and always will be principally a trial lawyer, he is equally accomplished in these three areas as well.

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