Family Law and the COVID-19 crisis has taken a large number of people by surprise regarding their legal options during these national health emergencies. And, it also opens the door to alternative forms of problem resolution including the mediation process, collaborative law process, and other forms of problem resolution that a lot of people have relegated to the back of their options.
As a result of the COVID-19 health emergency, the Dallas County Family Courts have recognized the concern about a potential outbreak of COVID-19 cases. It is important for our courts to recognize these problems ahead of time and find a resolution to the impending problem. The health and safety of litigants, attorneys, the public and those who work in the courthouse must remain a paramount concern to those people that pull the levers of power both locally and nationally. Since the COVID-19 outbreak, the Dallas County officials have issued orders related to family law matters as a whole and have included guidance from the Texas Supreme Court.
In Dallas County, attorneys or litigants that are sick, or think they have been exposed to COVID-19 are ordered to contact the court coordinators via telephone or email to reschedule their hearings or trials. For the most part, the court will continue the hearing or trial until further notice from the court.
In collaborative law, the process works with two clients and two attorneys working together toward the sole goal of reaching an efficient, fair, comprehensive settlement of all issues outside of the courthouse without exposing the public or the court staff to danger from the COVID-19 threat.
In 2001, when sections 6.603 and 153.0072 were added to titles 1 and 5 of the Texas Family Code, the State of Texas became the first state in the United States to pass statutes specifically authorizing collaborative law. In May 2011, the 82nd Texas Legislature passed the Collaborative Family Law Act (CFLA), which repealed sections 6.603 and 153.0072 and which was assigned to the new title 1 – A of the Texas Family Code.
In collaborative law, each party selects independent collaborative counsel. Each lawyer’s retainer agreement specifies that the lawyer is retained solely to assist the client in reaching a fair agreement and that under no circumstances will the lawyer represent the client if the matter goes to court. If the process fails to reach an agreement and either party then wishes to have matters resolved in court, both collaborative attorneys are disqualified from further representation. They assist in the orderly transfer of the case to adversarial counsel. Experts are brought into the collaborative process as needed, but only as neutrals, jointly retained by both parties. The process involves binding commitments to disclose voluntarily all relevant information, to proceed respectfully and in good faith, and to refrain from any threat of litigation during the collaborative process.
In Texas, although the Act does not require the attorney to obtain any special training in order to represent a client in a collaborative law matter, a family law attorney should not handle a case collaboratively without attending at least one collaborative law training conducted by an experienced trainer.
Whatever the outcome of the COVID-19 pandemic has on the family law courts, we all believe that our country will win the war on COVID-19 and that family law litigants will again have access to the best legal system in the world. The public should see this crisis as a learning experience that the legal system can only assist litigants to a point and that without experienced family law attorneys to guide litigants in their quest for a fair and just outcome to their problems, this world would be a lot worse off. Thank you to all my colleagues in the Family Law field that work every day to make life a lot easier for our population.