Most family lawyers would agree that minimizing animosity between divorcing parties and increasing trust and civility increase the likelihood of an acceptable result, and minimize post-divorce litigation.
While the ultimate outcome is obviously important, the process itself cannot be overlooked. The tone and manner of divorce litigation can significantly affect a party’s healing process, finances, mental and emotional health, parent-child relationships and ability to form future successful relationships.
Therefore, attorneys who zealously advocate for the clients in a cordial, businesslike manner provide their clients a great service. Cooperative divorce provides a framework for achieving client goals without unnecessarily inflammatory and damaging tactics.
What is Cooperative Divorce?
Cooperative divorce is an approach to divorce resolution promoting free exchange of relevant information, a commitment to civility, and focus on fair settlement. The cooperative lawyer can effectively apply these principles without restricting his or her duty to represent the client effectively.
Discovery, for example, can be structured to avoid distrust and frustration. While attorneys view formal discovery as simply part of the process, clients often perceive it as a declaration of war.
Cooperative divorce attorneys first request information informally, since such requests often seem less threatening to the recipient. They also request only information reasonably related to the outcome. If questions arise, further targeted discovery remains available.
Cooperative attorneys also respond to discovery clearly and in good faith, since unnecessary refusal to cooperate at this stage usually results in costly motions to compel and engenders paranoia in clients, who believe that the other spouse is hiding something.
Civility and a Focus on Fair Settlement
Civility is a focal principle of cooperative divorce. It requires, at deposition, avoiding name-calling or inquiry into 20-year-old affairs. Depositions are a means of obtaining relevant information; they need not devolve into combative inquisitions. Both clients are coping with enough guilt, sadness and anxiety; compounding those feelings with personal attacks rarely assists in future cooperation. The deponent often feels humiliated over personal matters, and compelled to inflict the same discomfort on his/her spouse, perpetuating the cycle of distrust and hurt. Information can be obtained just as easily, and probably more effectively, with a respectful approach. Probing, relevant questions are not precluded, but they are presented in a polite, rather than an inflammatory manner.
The principle of civility applies to all interactions with opposing counsel and parties. The cooperative lawyer confronts and resolves issues in a dispassionate, professional manner.
Because clients are already extremely sensitive, even a single barb in a letter or during a conference can make settlement more difficult, and perpetuate hurt and distrust into the post-divorce relationship. The cooperative attorney’s civil approach demonstrates to the clients that opposing parties are not “out to get” each other, but in fact are willing to work together fairly.
The benefits of cooperative divorce are significant. Cooperation during the pendency provides a framework to rebuild confidence and trust. Less parental conflict results in better parent-child relationships and fewer adjustment problems. A focus on a fair settlement prevents parties from feeling taken advantage, and permits them to choose an arrangement over which they have ownership and influence. Finally, cooperation is cheaper, permitting the parties to direct limited funds toward children’s needs, savings, and debt repayment.
Cooperation AND Litigation?
A focus on cooperation does not prevent an attorney from representing his or her clients in an assertive and ethically-responsible manner. Litigation, when necessary, is not precluded, nor are parties pressured into settlements out of expediency.
Sometimes an aggressive posture, including litigation, may be necessary to achieve an important goal. It may be wise, in domestic or child abuse matters, to keep the parties as separate as possible. However, even in these instances, a straightforward approach keeps the focus on resolution, and avoids replaying marital difficulties in the post-divorce arena.
Cooperative divorce provides the flexibility to litigate, if necessary, and places no restrictions on an attorney’s ability to effectively advocate. Since attorneys need not withdraw if settlement fails, Cooperative divorce encourages continuity of representation and eliminates the need to integrate new attorneys into the case if the original attorneys withdraw.
Clients can take their cues about what behavior is acceptable by observing their attorneys. Even clients who wish to be combative can usually be counseled to behave respectfully.
Cooperative divorce provides a blueprint for an attorney to advocate for his or her client, avoid further damage to the parties, and maintain cordial relationships with colleagues.
David S. Kowalski is an associate with Balisle & Roberson S.C. in Madison who concentrates his practice on divorce litigation, child custody and placement, cooperative divorce and appeals. He can be reached at DSK@b-rlaw.com.