Collaborative vs. Cooperative Divorce: What’s the Difference?

So, you and your spouse have decided that it’s time to end your marriage. However, you still get along reasonably well: you can hold civil discussions and have no major disagreements about how you want to handle your divorce. You may even still be friends. You’re familiar with the kind of divorce that appears on TV, and you don’t want to go through that dramatic, angry process. What can you do?

You might be surprised to learn that despite what you see in the media, people in your situation make up the majority of divorces. Most couples who split do so reasonably amicably, and as many as 95% of all divorces are uncontested or otherwise settled out of court.

If you and your spouse want to keep things friendly, you still have options. You can use different approaches to manage your amicable divorce, including collaborative and cooperative methods. Here’s how these methods of ending your marriage work, who may benefit from them, and how to choose the best solution for resolving your split outside the courtroom.

What Is Collaborative Divorce?

Collaborative divorce is a specific method of resolving disputes and developing a divorce settlement without the need for outside mediators or judges. When participating in a collaborative divorce, spouses and their attorneys work together in a structured environment to negotiate how the settlement will be structured. 

Initially, each spouse will have a one-on-one meeting with their attorney to discuss their preferred outcome and the compromises they will and will not make. This ensures they are both on the same page about the goals for the collaborative process. 

Next, the spouses and their lawyers will meet and sign a Participation Agreement in which they all agree to:

• Participate in negotiations in good faith
• Openly exchange information 
• Waive the right to full discovery
• Maintain the status quo regarding assets and children until the process is complete

In addition, the attorneys will usually be bound to withdraw from representing their clients if the process fails to achieve a settlement and they instead pursue litigation. 

After the agreement is signed, all parties will meet regularly to negotiate aspects of the settlement. During these meetings, they will make offers and counter-offers about asset division, child custody, and spousal support. Each session will typically be dedicated to a specific issue, and complex matters may require multiple meetings to resolve. Between meetings, spouses will communicate with their attorneys to strategize and prepare for potential compromises. 

The goal is to achieve a comprehensive settlement agreement that is satisfying to all parties without the need for litigation. Once a settlement is drafted, both spouses can sign it and submit it to the court, where it will be used as the foundation for their divorce decree. 

Benefits and Drawbacks of Collaborative Divorce

Formally collaborating with your spouse on your settlement has many benefits. The formal structure gives you a clear idea of what to expect each time you meet with your spouse. It also incentives keeping the matter out of court by requiring you to start almost from scratch if you cannot agree. 

This is also its primary drawback. If your spouse does not approach negotiations in good faith, you may waste time and effort you dedicate to collaboration and need to pursue litigation regardless. 

What Is Cooperative Divorce?

The alternative to collaborative divorce is a cooperative divorce. The goal is the same: to achieve a divorce settlement by negotiating directly with your spouse with the assistance of your attorneys. However, cooperative divorces are not bound by the same structure as collaborative ones. 

Instead of signing a Participation Agreement, couples and their attorneys will simply agree to work together. There is no contract requiring the lawyers to withdraw from representing their clients if the process involves litigation. This informal structure allows couples to work together to resolve their disputes and negotiate their settlement without the obligation to find new representation if they cannot reach an agreement. 

The actual process of cooperative negotiations often looks similar to collaborative divorce. You will schedule meetings to negotiate matters and work together to draft a settlement. However, the approach is more flexible, and there are no penalties if something must be litigated. Furthermore, both parties may perform full discoveries to acquire information about their joint and separate finances, so there is less risk of your spouse concealing critical information. 

Benefits of Cooperative Divorce

The informal nature of cooperative divorce makes it an excellent option for couples who have minor disputes or want to reserve the opportunity to take the matter to court. It allows spouses with few disagreements to resolve them quickly and easily. 

Meanwhile, couples with significant disagreements can take the opportunity to attempt to negotiate without wasting their efforts if litigation becomes a necessity. However, without a specific incentive to work together, some couples find cooperative approaches less successful at preventing them from going to court. 

When to Choose Collaborative or Cooperative Divorce

Both collaborative and cooperative approaches can be valuable tools for amicably ending marriages. If you are looking for ways to manage your split without going to court, one of these two options may work well. However, they are not interchangeable. Ask yourself the following questions to determine if collaborative or cooperative divorce better fits your needs:

• Do you believe your spouse is equally committed to negotiating a fair divorce settlement? If you are both equally committed, you may benefit from either approach. However, if you don’t trust that your spouse will negotiate in good faith, a cooperative divorce may be a better fit to avoid starting everything over if you need to litigate matters.
• Do you trust that your spouse will be fully honest? Similarly, cooperative divorce is the better option if you don’t trust that your spouse will be fully honest. It permits you to perform full discovery, so your attorney can seek out information on your behalf.
• How many disagreements do you need to resolve during your negotiations? If you only have a few matters to resolve, cooperative divorce’s flexible approach may be more than enough. However, if you have significant assets or disputes, the structured nature of collaborative divorce may benefit you more. 

If you still have concerns about the best approach for your divorce, do not hesitate to consult with a knowledgeable divorce attorney. They will help you determine the best path forward for your split and help you pursue the best possible outcome during your negotiations.