Divorce Options: Cooperative Divorce

What are your divorce options?

Option 5: Cooperative Divorce

Cooperative divorce is a “less destructive version of a traditional” litigation divorce which does not require the spouses lawyers to withdraw if either spouse decides to go to court (as is the requirement of the Collaborative Divorce process) (Gaies, 2018, p. 14). A cooperative divorce is similar to a collaborative divorce minus the disqualification rule and all of its benefits (Gaies, 2018). Cooperative divorce utilizes lawyers who are trained to employ a collaborative-style and are solution-oriented which results in an approach that is less adversarial than traditional litigation (Gaies, 2018).

That being said, cooperative divorce is still a litigation process and therefore formal court procedures are involved (Gaies, 2018). On the plus side, if an agreement cannot be reached and the divorce goes to court, the spouses are able to continue working with the same lawyers. Lande & Herman (2004) state that “a party who believes that the other party is being unreasonable retains the power to litigate without having to hire and educate a new lawyer” (p. 284).

Cooperative divorce may be a good option if “both parties want or need lawyers to participate directly in the negotiations” (Lande & Herman, 2004, p. 285). According to Lande & Herman (2004), in some cases, “parties may need to threaten litigation to motivate the other side to negotiate appropriately” and cooperative law allows this, whereas in collaborative law, the lawyers are bound to withdraw at even the threat of litigation (p. 281).  

On the other hand, without the disqualification agreement which is part of the Collaborative Participation Agreement, cooperative divorces will likely be lacking the “trust, transparency, and shared sense of purpose” that is cultivated within and characteristic of the collaborative divorce process (Gaies, 2018, p. 14). Additionally, the “implicit or explicit threat of litigation may taint the negotiation by undermining a problem-solving atmosphere” Lande & Herman, 2004, p. 284).

Cooperative divorce may not be a good option if domestic violence is or has been an issue within the relationship. Much like collaborative law, the relationship would need to be further assessed by the team in order to determine the appropriateness of this option for the specific partners.

Written by Caitlin S. Lowry, PhD, LMFT

References

Gaies, J. (2018). A clear and easy guide to collaborative divorce. ISBN: 198573818X. (pp. 3-20).

Lande, J., & Herman, G. (2004). Fitting the forum to the family fuss: Choosing mediation, collaborative law, or cooperative law for negotiating divorce cases. Family Court Review, 42(2), 280-291