Confidentiality and privilege are important legal rights and duties in a collaborative divorce. Confidentiality is a legal protection of private information shared with institutions such as businesses, hospitals, schools or a law firm. Ordinarily, privilege covers only direct communications between an attorney or physician and her client. However, within a Collaborative Divorce, all communications are afforded the protection of privilege, which is the highest level of privacy protection available under the law. Because a Collaborative Divorce happens outside the courtroom, clients’ private personal and financial information are never disclosed. By contrast, a litigated divorce is open to the public.
Confidentiality and Privilege
Confidentiality in a Collaborative Divorce is granted by §15.113 of the Texas Collaborative Family Law Act. Privilege against disclosure of collaborative communications is granted by §15.114 of the Texas Collaborative Family Law Act. The Texas legislature decided that the collaborative divorce process should enjoy stronger protection than mere confidentiality, so it granted privilege to all communications within the collaborative process. Not even the courts can demand the disclosure of privileged collaborative information except under very limited circumstances. And, the privilege belongs to the collaborative process rather than the parties so they alone can’t waive it.
Section 15.113 states that a collaborative family law communication is confidential to the extent agreed by the parties in a signed record. The Texas Collaborative Family Law Act is unique because it allows the parties to agree that even their conduct and demeanor during meetings and communications which occurred before signing the Collaborative Family Law Participation Agreement are confidential.
Section 15.114 states that Collaborative Divorce communications, whether made before or after the beginning of litigation, are not only confidential but also privileged and are neither subject to disclosure nor available as evidence against anyone participating in the collaborative process. Only if the information is discoverable by independent means may it be used in a court of law. The privilege cannot be waived by the parties alone and is similar to the broad legal protection afforded communications during mediation or other dispute resolution processes. According to comments by Sampson & Tindall, the intent of the Texas Collaborative Family Law Act was to strengthen the confidentiality of all collaborative communications by making them privileged.
Limits of Privilege
Section 15.115 of the Texas Collaborative Family Law Act limits the scope of privilege. It states that privilege does not apply to communications contained in a collaborative agreement in writing and signed by the parties. This means that a signed collaborative settlement agreement is discoverable. Additionally, the privilege can be waived if all parties and non-party participants agree. Finally, the usual limits on privilege apply when there has been a threat of bodily harm or commission of a crime, abuse is suspected, there’s a claim of professional misconduct, an allegation of fraud, a dispute about attorney fees or a claim against a third party who was not privy to the collaborative family law agreement.
Confidentiality and Privilege in Collaborative Divorce
Unlike litigation, a collaborative divorce is totally confidential. When the parties sign the Collaborative Law Participation Agreement they pledge to maintain the confidentiality and privilege of oral or written communications between the parties, their attorneys and neutral professionals. These communications are not subject to disclosure in a court of law and cannot be used as evidence during litigation. If the parties opt out of the collaborative process and proceed to litigation their communications, actions and demeanor remain private and cannot be used as evidence in court.
Professionals with a reputation to protect, wealthy individuals with large estates they wish to keep private and anyone who has committed an indiscretion, such as adultery, will appreciate the benefit of keeping their personal lives out of the court room by agreeing to a Collaborative Divorce. This is by far the strongest single selling point for wealthy or professional clients, so be certain to mention it when you first talk to your client about divorce options and introduce them to Collaborative Divorce.