Chicago Divorce Attorney Blog

What Happens when a Cooperative Divorce Law Case Goes to Court?

No matter which approach you use in your divorce, it is not always possible to persuade your soon-to-be ex to agree a divorce settlement that is acceptable to you.

If this occurs in the cooperative divorce law model, the attorneys are permitted to accompany their clients into the court system and litigate on their behalf.
(This is prohibited in collaborative divorce where, if settlement attempts fail, the parties must replace the collaborative lawyers and hire new lawyers to take their case to court.)

Typically, when a cooperative divorce moves into the court system, the parties are still likely to experience a less costly and less stressful divorce than they would have experienced had they started their divorce by going directly into litigation as most people do.

This is because their prior agreement to cooperate tends to carry over into the court system. It tones down the normal anger and friction of divorce. The parties leave the cooperative process with less resentment, less distrust, and with a much better understanding of divorce and of how it works.

Being cooperative at the outset gives them the opportunity to vent their feelings. and this enhances their chances of reaching a compromise. Rather than seeing their divorce as a winner take all proposition, they now comprehend the mutually beneficial aspects of meeting one another half way.

They appreciate the wisdom of attacking their problem together, rather than spending their energy, time, and money attacking one another.

How Do I Keep My Divorce Friendly? Part II

In order to be able to persuade your soon-to-be ex spouse to agree to a mutually acceptable out of court settlement, you must be able to keep their mind open and willing to consider a compromise, so that a settlement may occur.

There are two parts to doing this. The first part is simple to understand, and the second part requires motivation. All you need to know about the first is that you must refrain from aggravating your spouse. It all starts there. If you aggravate him or her, you lose. If you don't aggravate them, you have your foot in the door and you stand a chance.

Non-aggravated spouses in divorce are typically less defensive, less untrusting, less suspicious, less vengeful, less stubborn, and are generally less difficult to deal with. Unhampered spouses have room in their minds for compromise and this is the first thing you must accomplish.

The second part - the part that requires motivation - requires that you do what is necessary to keep your partner's mind clear, unhampered, and open to compromise.

We accomplish this by doing the last thing in the world that we want to do, despite it being the only thing in the world that actually works, and this is to be nice to them. Yes, I said "Nice."

Be sure to look at Part III.

Opening the Door to Compromise and Settlement

It is one thing to say you want your divorce to be sensible and friendly, but it is an altogether different thing to know precisely what you have to do to get a sensible and friendly divorce.

"The Secret to a Friendly Divorce" category of this blog shows you exactly what it takes. It reveals the little known, but extremely effective, things that you must say and do (and not say and do!) to entice your soon-to-be ex to join you in creating and maintaining a sensible and friendly negotiation climate throughout your divorce.

Sensible and friendly divorces are quicker, less costly, and much easier on the family. They involve less pain, less frustration, less anger, less hurt, less fury, less despair, and less anxiety and confusion.

When the divorcing couple's minds are relatively un- hampered by the negative influences that are prevalent in divorce, the door to settlement opens and reaching an out of court settlement becomes possible.

How do we open the door and keep it open? Explaining this part is easy, but doing what we need to do requires motivation.

These answers and more follow immediately in the two next blog posts.

What Do the Lawyers Do Differently in Cooperative Divorce Law

Just as the divorcing parties make a commitment to help themselves, the lawyers also commit to help the parties to maintain a spirit of cooperation and sensibility.

In order to do this, cooperative divorce lawyers encourage their clients to enter into a Cooperative Divorce Law Participation Agreement in which they formally state their mutual commitment to work toward reaching a non-court resolution.

Both parties promise to take the high road and negotiate with respect and civility. They commit to act in ways that are geared to save them time, frustration, and money. See Addendum to Participation Agreement.

The lawyers also agree to promote positive conflict resolution solutions rather than allowing any further discord between the parties to develop or fester. The lawyers demonstrate appropriate role modeling to minimize the predictable angry and emotional outbursts that divorcing parties are invariably prone to display.

The lawyers attempt to narrow the issues, encourage prompt and individualized discovery, and to do what they can to help their client maintain an open mind toward compromise.

Cooperative divorce lawyers agree to treat their client's soon-to-be ex in a non-confrontational, non-threatening and non-accusatory fashion at all times.

The lawyers' job is to the clear the way for the parties to be able to negotiate with one another without being stymied by communication land mines or by the various other obstacles to settlement.

Cooperative divorce law - our newest non-court approach to divorce - provides a myriad of benefits.

It creates and maintains a non-confrontational climate that helps the soon-to-be ex spouses communicate in ways that minimize the stress and uncertainty of divorce.

It gives the parties positive guidance in reducing conflict, so they can move toward reaching a mutually acceptable settlement as opposed to having to go to court.

By staying out of court, the spouses are able to maintain their financial and personal privacy. Contrary to what normally occurs in the court system, they do not run the same risk of having their affairs become a matter of public record.

Cooperative divorce law keeps children in mind. It supports healthy co-parenting and helps the children to adjust to the changes they will undergo.

The cooperative approach focuses on the parties' concerns and emotions, and thus enables them to discuss their grievances in a positive and healthy manner. This, of course, gets the emotional debris out of the way and facilitates practical problem solving.

Cooperative divorce law also prevents the escalation of conflict and gives the parties control over the cost, length, and outcome of their divorce. When the parties are able to co-author their financial futures, the probability of future problems become minimal and finality becomes possible.

What is Cooperative Divorce Law?

Cooperative divorce does not have an exact definition. Historically, it is a term that we would apply to situations where divorcing parties settled their differences amicably and without a court fight.

Today, it seems to stand for two different settlement-oriented, non-court approaches to divorce. Some people use the term loosely to describe any no-fight divorce that the parties obtain by using either of the two more popular dispute resolution alternatives: mediation and collaborative law.

The other use of the term stands for a distinctively different and merging dispute resolution model -cooperative divorce law - which is well on its way toward joining ranks with mediation and collaborative law as the third, non-court way to divorce.

The new and mostly unannounced cooperative divorce law movement has indeed begun and is showing steady growth throughout the United States. Mediation and collaborative law are wonderful alternatives to our adversarial system of divorce. They legitimately save thousands of people incalculable amounts of pain and money, but they are not for everyone. It is believed that cooperative divorce law can and will fill this gap.

The rapid growth of mediation and collaborative law establishes that there is great public demand for less confrontational and less costly ways to divorce. Cooperative divorce law holds part of the answer and it may just show itself to be the future of divorce.

Cooperative divorce law has officially arrived in Chicagoland.

Cooperative divorce law is a process that saves divorcing parties time, energy, and money. It follows mediation and collaborative law as our third non-court, settlement approach to divorce.

Each party commits to the cooperative approach and signs an agreement [link to cooperative law participation agreement] in which they agree to act in ways that will enhance their chances of achieving an out of court settlement.

The agreement is non-binding, but it provides the parties with a defined and structured process to help them get to where they want to go. The agreement is a roadmap of sorts.

Each party retains his or her own attorney and all four agree to meet regularly to work toward reaching a sensible settlement of the parties' differences. The focus is on saving the soon-to-be ex spouses from the unnecessary pain and expense they would likely encounter if they were to go straight to court.

There is no downside to cooperative divorce law. It creates an attitude of common sense civility and routes the parties' thinking toward a constructive solution, instead of a destructive one.

We Underestimate the Fury We Will Face

Many divorces start out friendly and then turn into train wrecks. One reason for this is because we are not properly prepared to handle the potentially explosive nature of divorce settlement discussions with our soon-to-be ex.

A barrage of fury awaits us at the bargaining table where we are prone to retaliate by adding our own fury to the mix. When our spouse says something confrontational, we become angry and retaliatory. When we are insulted, we insult back. In doing so, we aggravate our partner and aggravated partners do not want to settle, they want to fight.

No one has ever won an argument by alienating their opponent.

We fire back because we seem to think that firing back is free. It isn't. It complicates the divorce process and causes unnecessary litigation. We are not giving our spouse a pass when we do not return their attack, we are giving our wallets a pass.

Boxers do not get upset when they get punched and football players do not get upset when they get tackled. They expect to be punched and tackled and we should expect to be confronted and insulted. For us to think otherwise is naïve.

The best way to prepare for being insulted or verbally attacked is to anticipate its happening. When you know it is coming, there is no shock and there is no justifiable reason to react instinctively (and at your own expense). Simply expect an attack and you will automatically be in a position to brush it off.

Accept in advance that your spouse will be volatile or difficult; and, if you hope to prevent your divorce from becoming unnecessarily painful, lengthy, or costly, never, ever fight back no matter how tempted you may be to do so.

We Think We Have More Legal Rights than We Do

Most of us enter the divorce arena with preconceived notions of the law has in store for us. Unfortunately, much of what society has conditioned us to believe in this regard is often inaccurate.

Misinformation about divorce law and the legal system is perpetually circulating among the public. This is primarily due to decades of legend and hand-me-down stories and myth.

Our friends and family mean well, but their knowledge is generally incomplete or erroneous because it can only be as accurate as the bits and pieces of information that they have gathered from other lay people. We all know how stories become distorted as they spread throughout a community.

Consequently, many spouses enter the divorce system believing that they have more legal rights than they really do. When they learn that the law will not give them the settlement that they were expecting, they become frustrated, angry, and difficult to deal with.

This leads to unnecessary conflict and delay because most divorces will ultimately settle in a way that is consistent with the way the law is, as opposed to what one or both of the parties wishes the law to be.

It is asking a lot to expect an early settlement when one of the parties entertains unrealistic, though perhaps understandable, expectations about his or her entitlement.

It takes time, patience, and willingness for the misinformed party to become able to adjust their thinking so that they can consider other settlement alternatives.

One Spouse Wants Vengeance

Another delay surfaces when one of the parties feels wronged or angry. They see themselves as the "victim," and they want the court to know they have been victimized. These spouses don't care if the case takes a long time; they just want the judge to know how bad their partner is.

They count on the judge sharing their outrage and making the other party suffer, but this is just wishful thinking on their part. The judge is not going to declare who the victim is, and then punish the wrongdoer spouse in the town square for all the neighbors to see.

Seeking vengeance in the court system takes too long, costs too much, and usually hurts us just as much as it hurts the person we want to hurt. All it does is make it harder for the parties to reach a settlement.

Most aggrieved partners do not take kindly to the fact that the court cannot consider misconduct as a factor in determining monetary or property awards.

It is asking a lot to expect an early settlement if one of the parties persists in entertaining unrealistic, though perhaps understandable, expectations about what the legal system will actually do for them.

The judge does not compensate the victim spouse for the other spouse's bad behavior. Our divorce courts follow only the facts and the law. They do not take our hurt feelings or need for vengeance into account.

Divorce courts are not criminal courts and have neither the luxury nor the inclination to punish a spouse for behaving improperly toward his or her partner.

Divorce Papers Make People Mad

Divorce papers are upsetting and they can start wars all by themselves. The "papers" that are necessary to start a case qualify as an barrier to settlement because of the destruction they so often do to the parties' hopes for working things out smoothly.

When one of the spouses chooses to institute a divorce case, his or her attorney is required to file "divorce papers" with the court. These papers must conform to the statutory requirements for such a document and these requirements are never pleasant sounding to the person against whom the papers are filed.

Even if the lawyers make the papers as non-offensive as possible, most people get very upset when they read them. No one wants to be on the filing end of divorce papers and no one wants to read about their lives in the formal and accusatory manner in which they are set forth in these documents.

Even if the parties are intent upon having a friendly and cooperative divorce, the initial papers that are filed with the court cannot ever be as friendly or as cooperative as the parties might like them to be.

Finger-Pointing

This obstacle causes us to focus on the cause of the divorce when our focus should be on how to resolve the divorce.

The longer we spend dwelling on the reason for the divorce is the more time and money we will spend getting divorced.

Angry people see themselves as victims. This makes us want to blame and blame does not settle divorce cases; instead, it starts wars. Blame causes anger and anger causes blame. They feed off one another at our expense.

Our spouse does not want to think of us as the victim, they see themselves as the victim. They want sympathy from us, not the other way around. The way they see it, we should be apologizing to them and acknowledging our guilt for victimizing them. To blame them is like throwing gasoline on a fire.

Finger-pointing and blame do not settle divorce cases.

Feelings Count More than Money

If a divorce case goes to trial because the parties cannot resolve their financial differences, it usually has more to do with feelings that it does with finances.

As part of what I discussed in the "We Don't Know How to Get Through to Our Spouse" post, this is another of our classic misunderstandings. Most divorce wars are not about money, they only sound like they are about money. They are about unresolved feelings, which do not appear on a ledger. We have to soothe the feelings before we can settle the divorce.

However, we cannot soothe the feelings until we can talk about them constructively and this takes more time than an early settlement allows. We are rarely content with a settlement offer if we still have something to say and society has not taught us how to state our objections without stirring up trouble.

We must allow our spouse to vent without our becoming aggravated, and we must learn how to express our feelings sensibly and safely.

Feelings are a major part of divorce negotiations. Attempting to negotiate a divorce settlement without addressing feelings is like trying to land an aircraft without fuel. While this is doable, it does make the landing much harder.

We Don't Know How to Get Through to Our Spouse

This obstacle is a classic. It involves something that logic should prevent us from attempting, yet we all try to do it anyway (your blog host included). We invariably try to settle our divorce case by relying upon the same communication skills that probably caused the divorce to begin with.

In many cases, our inability to communicate effectively with our partner may very well be the primary reason for the marital breakup. Even when poor communication isn't the biggest reason, it always plays some role in bringing our marriage to an end.

Trying to convince our partner to agree to an early and a friendly divorce settlement requires that we be on the same page with them during our settlement discussions. This requires an extraordinary degree of cooperation and communicative ability.

If we were unable to achieve and maintain this high level of communication during the marriage when things were good, what chance do we have of doing it during a divorce when things are bad?

Thus, it is foolish on our part to rely upon something to keep us out of trouble when its failure to work is most likely the reason that we are in trouble to begin with.

The Parties Make Decisions Differently

In addition to what I discussed in the "One of the Parties Does Not Want a Divorce" post, another problem arises if the parties have different styles of decision making. Big decisions take time and the decision to divorce is not an exception. The spouse that wants the divorce has already made his or her decision, but the other spouse usually requires additional time in order to process things and think them through carefully.

Even if the non-moving spouse is trying as hard as they can to adjust to the fact that a divorce is imminent, he or she may have a differing style of decision making than does the moving party.

Some of us can comfortably make large purchases more quickly than others can, and some of us are more methodic in our thinking and need more time to contemplate making the same decision.

This mostly overlooked barrier rears its head when human nature causes the moving party to lose patience with the non-moving party's failure to proceed at a speed that is acceptable to the moving party.

The moving party must always honor the way that the other party processes his or her choices. The moving party must also be patient and allow the non-moving partner's timetable to control the situation. To do otherwise, is to invite trouble that can easily lead to a painful, lengthy, costly divorce.