Tuesday, March 1, 2016

Is "Cooperative" Divorce Right for You?

Probably not, but let me explain why.

Two different approaches. If you have been researching Collaborative Divorce, you may have run across the term "cooperative divorce". Or, you may ask a lawyer about Collaborative Law and the lawyer starts suggesting cooperative divorce. While Collaborative Divorce is based on a statute in the Texas Family Code, cooperative divorce is not.  However, cooperative divorce is sometimes promoted by lawyers who either haven't been trained in Collaborative Law or who just haven't fully made the transition to Collaborative Law.

Main difference.The biggest difference between Collaborative and cooperative law is that in Collaborative Divorce, the attorneys must withdraw from representing the parties if the process breaks down and the parties head to court, while in cooperative law, the attorneys don't have to withdraw.  The Texas statute is clear that for a case to be operated under the Collaborative process, the withdrawal requirement is mandatory.  Without it, the process is not "Collaborative Law".

Reason for "cooperative". Probably the main reason why attorneys sometimes want to use the cooperative process, even if their client came in wanting a Collaborative Divorce, is  that they don't want to withdraw if the process fails.

Benefit of requiring withdrawal.  My experience is that the threat of withdrawal upon failure is one of the biggest reasons why the Collaborative process works.  If the discussions come to an apparent impasse, the parties will back up and try another approach rather than just stop and go to court.  The attorneys and other professionals don't want to lose business (and income) and the parties don't want the expense of hiring new counsel and getting them up to speed on the case.  There's also the loss of time for the transition that slows down the process.

Some other missing ingredients.The Texas Family Code provides some other benefits under Collaborative Law that are not available for cooperative divorces.
  • Confidentiality.  The meetings and discussions in a Collaborative case are confidential.  They are not in a cooperative divorce.
  • Privacy.  Cooperative divorce has no privacy protection.  Collaborative Divorce does.
  • Discovery.  There's no requirement that information be shared freely in cooperative divorces.  In Collaborative cases, information is shared and is usually gathered and reviewed by a neutral expert.  That also doesn't happen in cooperative cases.
  • Mistakes.  There's no duty to correct mistakes in cooperative cases, but there is in Collaborative cases.
  • Scheduling.  The court still controls scheduling in cooperative cases.  It does not in Collaborative cases.  The independence in Collaborative cases gives the parties much more freedom to take the time they need and want to resolve the issues. 
There are other differences between the systems as well.

Is there a role for cooperative divorce?  Possibly, if the divorce is a very simple case, probably with no kids and little or no disagreements.

If there are complicated children or property issues that require a thoughtful and open approach, Collaborative Law is probably a better choice.

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