Divorce and Separation Process Options
Options for resolving separation agreements
Shirley works tirelessly to reduce the impact separation can have on you, your family and your children. With the ultimate goal of obtaining an out of court settlement tailored to your specific needs, Shirley often works with various financial and family professionals, including business valuators, real estate appraisers, tax accountants, social workers, parenting co-ordinators and others, to ensure your situation is resolved in the most informative and effective way.
Out-of-Court Options
Settling issues without the Courts saves time and money while minimizing emotional and financial stress. Staying out of the Court system means documentation exchanged and information revealed is kept confidential and is not available for public scrutiny, as are Court documents.
Collaborative Process
In this out-of-court settlement process, each spouse has their own collaboratively trained lawyer. There is a written commitment not to go to Court but rather to negotiate in good faith, with the end goal being:
- To minimize the destructiveness separation/divorce can have on the family
- Maximize the opportunity for a creative, durable and binding agreement that is tailored to your unique situation
Negotiations are done through a series of team meetings. The team may consist of the two spouses and their two lawyers. However, other professionals, including financial and family professionals, may be included from the outset or added during the negotiations.
By choosing this process, you are choosing professionals who are specifically trained and motivated to reach a settlement because they know this style of negotiation helps to reduce the emotional, financial and psychological toxicity of a divorce or separation. It also allows for considerable creativity in the least adversarial, most beneficial and respectful way, allowing you to move on with living your life.
In the event one or both spouses ultimately wish to go to Court; however, both spouses must get new lawyers.
For more information on Collaborative Practice, visit the Ontario Association of Collaborative Professionals at www.oacp.co.
Traditional Settlement Negotiation
Traditional settlement negotiation involves the lawyers of each spouse attempting to negotiate a settlement out of court. This process does not require either lawyer to have specific collaborative or mediation training.
If the negotiation is successful – the settlement – incorporated into a separation agreement – deals with issues that are relevant to the particular couple. Once the agreement is finalized and signed, it is a binding contract, and court is not necessary except to obtain the actual divorce order, which is the legal termination of the marriage.
If the negotiation is not successful, then the issues can either be dealt with via mediation and/or arbitration, or the couple will need to go to Court.
Mediation
Mediation is the dispute resolution process in which one professional is hired by the couple to assist them in reaching an agreement on their specific issues. The mediator’s job is not to give legal advice but to be a conduit for settlement.
In mediation, each spouse must have his or her lawyer to provide independent legal advice with respect to the legal issues. A mediator may:
- Draft the agreement, leaving it to the lawyers of each spouse to finalize the specific wording.
- Alternatively, once the terms have been agreed to, one of the lawyers may proceed to draft the agreement, thus still leaving the “final touches” to be negotiated directly between the lawyers.
In the event an agreement cannot be reached with mediation, the outstanding issue(s) can either be dealt with through arbitration or through the Court system.
Options for when a separation agreement cannot be reached
Arbitration (Out-of-Court Option)
Arbitration is an out of Court process in which a senior lawyer acts as “Judge”, and is hired by the spouses to hear evidence and make binding decision(s). Each spouse has his or her own lawyer. The process does not occur in a courtroom, however, the Arbitrator’s decision can be appealed to a Court. The couple may choose the person who acted as mediator to proceed to be the Arbitrator, or a different person may be chosen to arbitrate. These are advantages and disadvantages to each scenario.
Litigation (Court Option)
Litigation involves the spouses proceeding to Court to have a Judge make a decision in their case. This is typically the route of last choice.
Frequently Asked Questions:
Divorce & Separation
Collaborative Practice
Each spouse has his/her own collaboratively trained lawyer. There is a commitment not to go to court, and to negotiate in good faith. The main premise is to attempt to minimize the destruction separation/divorce can have on the family, and to maximize the opportunity for a creative and enduring agreement.
(What is) Arbitration
A senior lawyer acts as ‘judge’, and makes a decision based on oral testimony and other evidence. Each spouse has his/her own lawyer. This process does not occur in a courtroom, and is paid by the spouses. The decisions are binding but can be appealed to a court.
(What is) Mediation
One professional assists the couple to reach a separation agreement. The mediator is not there to give legal advice. Each spouse must have his/her lawyer to provide independent legal advice with respect to the legal issues.
(What is) Traditional Negotiation
The two lawyers attempt to negotiate a settlement, which if successful, is then incorporated into a separation agreement. If not successful, may end up in Court or an Arbitration. When there is motivation to settle out of court, this can be referred to as ‘Settlement Negotiation’.
(What is) Litigation
The spouses proceed to court to have a judge make a decision.
Testimonials
Get in Touch
Business Hours
Monday - Friday
9am - 6pm
