Preserve your assets and relationships with cooler heads
Divorce often comes at the end of a bitter relationship struggle where the parties have hammered each other mercilessly. As each hammers the other, both seek retribution to redress their view of the other’s wrongdoing. Into the fray is thrown all the belongings, the home and other assets, and then the kids. The battle is all-consuming and consumes all involved. Many solicitors continue to litigate the case until the assets are exhausted, when anything left to fight over has evaporated.
Divorce Aid recommends solicitors who practice collaborative family law, a process by which specially trained solicitors undertake to try to agree your case without going to court. Agreements are still ‘rubber stamped’ at court as Consent Orders. This could be a dignified way for all the family to resolve divorce finances and children disputes. Ending your marriage with respect for each other can only be positive for your relatives and friends. Without respect, there is a lot of negativity and stress with few ‘winners.’
How does collaborative law differ from the normal process?
This new dignified approach allows couples to work as a team with trained professionals in order to resolve disputes with respect for each other and without going to court. You both have the support, protection and guidance of your own solicitor who is able to call in other experts such as child specialists, counsellors, financial specialists or accountants as part of your own divorce team.
Is it like mediation?
No. The collaborative practice proactively guides the couple to reach an agreement and moves forward the decision making process, the spouses and the solicitors working closely as a team. In mediation, the mediator does not advise or represent the clients and they need to seek advice from their solicitors during the process.
Are there any cost savings?
This is a fairly new process, started here in 2003 but widespread in Canada and USA, but the main savings are seen in the reduction of solicitor’s correspondence as most things are done verbally around the table. Paperwork is generally kept to points of agreement and a list of matters to be discussed at the next meeting. As well as reducing legal costs, it also reduces the heartache and antagonism which go hand in hand with marriage breakdown. In many cases, it is not the divorce that does so much harm to families but the way people divorce.
How does the collaborative process work?
You have both met with your respective solicitors, discussed the different options and processes available and decided that the collaborative process is for you. What can you expect to happen next?
You will both meet individually with your separate solicitors to talk about what to expect in the collaborative meetings which are usually referred to as ‘four way’ meetings as they are meetings between the four of you – you and your partner and your respective solicitors. You and your solicitor will discuss what you both need to do in order to prepare for the first ‘four way’ meeting.
Your solicitor and your partner’s solicitor will speak to each other either face to face or over the phone in order to plan for your first meeting.
The first four way meeting:
At the first four way meeting the solicitors will make sure that you both understand that you are making a commitment to working out an agreement without going to court and you will all four sign an agreement to this effect. You and your partner will be invited to share your own objectives in choosing this process and you will all plan the agenda for the next meeting. This will depend on your own individual circumstances but might typically include a discussion about how the children are responding to the separation. If time permits you may also go on to discuss how financial information will be shared and agree on who will bring what financial information to the next meeting.
Subsequent four way meetings:
Subsequent meetings will deal with you and your partner’s particular priorities and concerns. You might, for instance, look at involving other professionals such as specialists in pensions and financial planning or people trained to assist children in understanding and coping with the changes that your divorce or separation will bring to their lives. The meetings will enable you to reach agreement on how the finances will be shared or what arrangements need to be made for any children.
The final meeting:
In the final meeting documents detailing the agreements you have reached will be signed and your solicitors will talk you through anything else that needs to be done in order to implement those agreements. Sometimes a firm timetable for implementation will not be possible, for instance, if the family house needs to be sold.
How long does the collaborative process take?
One of the benefits of the collaborative process is that it is not driven by a timetable imposed by the court. So to a large extent the process can be built around your family’s individual timetable and priorities, as these meetings follow agendas set by you and your partner. Sometimes only a couple of meetings are needed, in other cases four or five. Once an agreement is reached, your solicitors will put it into effect, obtaining a court order where needed.
What are the advantages of Collaborative approach?
- It is dignified and non-aggressive
- Children’s interests can be kept at the forefront
- Court costs can be avoided
- You may both be able to maintain amicable contact regarding family, friends and children
- You can maintain some control over events with the protection of expert advice
- You don’t have to let a judge decide on these important matters
- Neither of you is out to seek revenge
Most Cases Settle
A very high percentage of all divorce cases are resolved without a trial. In the Court system that resolution often comes more than a year after the divorce was commenced and after many hurtful statements have been made part of the public record in the form of affidavits and motions. Therefore, doesn’t it make more sense to seek that resolution before the bridges are burned and the missiles are launched in a courtroom?
Certainly, a collaborative divorce will not work in every case. After all, it takes two willing participants to effectively use the collaborative law process. However, in the cases where the collaborative approach has been used, even if reluctantly, there have been more rapid settlements at a fraction of the normal cost associated with divorce.
- 17 Nov, 2015
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