Why Cooperative vs. Collaborative Divorce?

The terms “collaborative divorce” and “cooperative divorce” sound similar. Both are approaches to the divorce process where you commit to being reasonable and working together to reach agreements. There are a few important differences that you need to know in order to find the right path for you. What is Collaborative Divorce?

In a Collaborative Divorce, divorcing spouses and their attorneys sign a “Participation Agreement” to negotiate the entire process without any court involvement of any form. They agree to confidentially mediate and negotiate everything in “good faith,” with full disclosure, honest collaboration, and without litigation. Generally, in a Collaborative Divorce setting, the attorneys commit that they will withdraw and not participate in any litigation if a full resolution is not able to be reached and court involvement becomes necessary.

Proponents of “Collaborative Divorce” emphasize that avoiding court altogether will keep stress and costs at a minimum. The idea is that part of the benefit of the potentially harsh effects of a commitment to reach a full agreement or facing the impact of having to fully start over if the process does not work encourages people to work together to find a full solution and to truly invest in the process. While this is ideal in theory, it is often not realistic in practice for everyone.

In a collaborative divorce, each spouse works with their own separate attorney who has been trained in this approach. Additional professionals such as therapists, financial advisors, or child custody specialists are often involved to assist the group in reaching a full agreement. If you are able to mutually come to a complete agreement on all terms of your divorce and custody case, the attorneys will finalize your paperwork to be submitted to the Court, typically without any appearance in Court or involvement beyond processing your paperwork.

Unfortunately, in both divorce mediation and collaborative divorce, if you are not able to come to a mutually agreeable and complete agreement, you will need to start the divorce proceedings over with new attorneys and other professionals that were involved. The negotiations and any evaluations or reports are generally confidential - even from the new custody evaluators or other professionals involved. Your collaborative divorce attorney has signed a written agreement to withdraw from the case should this happen, and you will need to find a new family law attorney to represent you.

What is Cooperative Divorce?

In a Cooperative Divorce, the goals are very similar, but there are some key differences can benefit both sides. Like with collaborative divorce or mediation, in a Cooperative Divorce, you also commit to working together in a reasonable way, negotiating in good faith, and making efforts to reach a mutual agreement on as many issues as you can. With the attorneys, divorcing spouses seek to work in a way that minimizes conflict, work toward a settlement that will be acceptable to both parties, and limit the need for any court involvement.

The primary difference is that in Cooperative Divorce, the agreement is to work together to limit the amount of court involvement. Ideally, no litigation will be needed. However, if necessary, the use of targeted litigation can assist in breaking through some of the “pain points” to allow you to get to a resolution without an “all or nothing” philosophy.

Often, experienced settlement-oriented attorneys can assist in reaching agreements and narrowing down the differences in areas where full agreements are not (yet) able to be reached. With the attorneys, you can coordinate and apply to the court for assistance without the escalating effect that litigation typically creates and without needing to start over with a new attorney. The attorneys can represent their clients in court which can keep your case as deescalated as possible and limit the damage that litigation causes to other agreements that you and your spouse are negotiating. Other issues can continue to be negotiated and you know that your legal team intends to keep the case moving forward.

Cooperative divorce also has the available option for partial resolution. If you are in agreement on certain aspects of your case or can reach temporary agreements on topics such as custody, parenting time, property division or financial aspects - you can confirm these agreements and have them entered as formal court orders that each party is required to follow until a new agreement is reached or a court changes the order.

Both approaches toward resolution have their benefits. The most important thing is to find what path is right for you.