Articles

By Theresa Lorella

Attorney at Seattle Divorce Services

As described in the previous post, many people are hoping they can avoid the costs—emotional and financial—of litigating a divorce or legal separation from their partner. In the first article, I discussed how to potentially reduce the conflict level after a litigation case has begun.

If you have not yet filed a case, or the case was just recently filed and no real court action or litigation has occurred, there are several options of how to start or proceed with the case to keep the levels of conflict down and move through the process to resolution.

One such type of case is often labeled as a “cooperative divorce.” In many ways, this kind of case is a hybrid of some of the other options that have been (or will be) discussed, but it is a term that is still in use by many family law practitioners.

The most common scenario where we use the term “cooperative” divorce is when a party comes to us and would like to file a case through the court system, but are actually hoping they can avoid using the tools of the litigation model. That said, there is often the concern that they may need to use the court system if something goes wrong, or if they are unable to reach resolutions along the cooperative path. The most important thing to remember when embarking on this option is that if you have the fallback of the use of the courts, so does your spouse. Unfortunately, this means that sometimes cases that are begun with the hope of being cooperative, do still find themselves going before the tribunal for assistance.

The good news is that a truly intended cooperative case can look very similar to a mediated or collaborative case (both discussed in future posts), if both spouses remain committed to working through disagreement and conflicts without threats or use of the court. A very important aspect to consider for partners with this shared desire, is that they each hire an attorney who shares the goals of their respective clients.

Though many attorneys are more than happy to work on such a case, from the client’s perspective, it may minimize the risk of a misunderstanding between the client and attorney to find counsel for a cooperative case who is trained in collaborative law. While not necessary, those of us who have a background in the collaborative world have training and expertise in many of the tools that are necessary to move a cooperative case from beginning to resolution. Often you will see that a cooperative case uses either the tools from a mediation matter or a collaborative matter to help facilitate agreement.

One of the distinctive features in many cooperative cases is the use of the four-way meeting between the two parties and their respective attorneys. This is not a tool that is used in litigation cases, as it requires both parties to be together, with the help of counsel, to discuss concerns, needs, and proposals. These meetings can be hard work, but they must always be respectful, and having properly trained counsel can help with that.

Often, many resolutions can be reached in a four-way meeting. If it appears that there are issues that require a bit more expertise or assistance, your counsel may collectively propose the use of other professionals such as a joint financial analyst or a divorce or parenting coach to help the parties further explore their own proposals and consider the proposals of the other party. After using these tools, a cooperative case will often settle with the assistance of counsel. Sometimes there is the need to get a mediator on board, perhaps for a one or two day session to finish up the remaining settlement issues.

A cooperative case is not the same as an “agreed” case, which to an attorney usually means that the parties have already worked through issues and have a settlement that simply needs to be translated into the court’s documents. Rather, a cooperative case is one that requires some work to get through, but each of the parties is hopeful and dedicated to doing so in an agreeable manner.

While it is possible to steer a litigation case into the more cooperative world, it is certainly best to try to state intentions to have a cooperative manner as early as possible in the process and to let your attorney know that is the goal. This may affect how to serve papers on the other party, and whether or not more traditional litigation stances will be taken from the time of filing. If it is your goal to be cooperative, your attorney can give the names of other cooperatively minded attorneys to pass on to your spouse so that everyone is on the same page and path from the inception of the case.