Collaborative Separation Assistance
There are several approaches that can be implemented in settling your affairs.
These range from kitchen table agreements to court. As you move along the continuum, the processes tend to increase in cost and parties relinquish more control of the process. Alternative Dispute Resolutions, being Mediation or Collaborative Process, allow individuals to be more in control and ensure the goals and needs of a family are met, and their interests are heard and addressed. Here is a summary of the various options available:
Kitchen Table:
If you can agree on a division of property that makes sense for you, then a simple approach is to have a financial statement prepared with corresponding organization of your disclosure. The financial work can be completed before you speak to a lawyer. It is important to provide full financial disclosure as you will have to swear to your statement’s accuracy. Your lawyer will advise you of your rights and entitlements, even if the Legal Model is not what you have agreed upon.
How Terri can help:
Completion of a joint Net Family Property Statement, a disclosure package, and referrals to settlement focused lawyers for Independent Legal Advice. Terri will produce both a Legal Model Financial Statement, and one that reflects your wishes, with a summary to your lawyers.
Mediation:
Mediation involves hiring a neutral third party who helps lead the discussion and negotiation process in assisting the parties in making decisions around property settlement and children. Meetings might take place with the three of you, or sometimes your lawyers would join to assist. Once you have resolved your issues, these may be summarized in a Memorandum of Understanding which can then be used to draw up a Separation Agreement. Mediators provide legal information, not legal advice. You will still need to retain a lawyer to provide you with Independent Legal Advice.
How Terri can help:
Terri can be jointly retained as a neutral party, or individually to complete the financial statements and disclosure package. Analysis and review of settlement proposals to ensure decisions make sense financially both now and into the future.
Collaborative Practice:
Collaborative Practice is an out-of-court resolution process with an emphasis on full disclosure, respect, and open communication. This approach is client-directed and family-focused. Working with collaboratively trained family lawyers, family professionals, and financial professionals allows you to address issues from a legal, financial, and emotional perspective and arrive at a solution that works for everyone in your family. The Collaborative Process is ideal for spouses seeking an alternative to traditional, court-based approaches to divorce and separation. It works particularly well for those who have children together and want to maintain the best possible family relationships, now and in the future. Making decisions about family and finance is best done by you and not a third party. The process places a high value on taking personal responsibility for handling conflicts with integrity and working through issues with the help of your professional team.
How Terri can help:
Terri acts as a neutral party, being jointly retained by both parties. All financial matters in the collaborative process are typically handled by the financial professional, including completion of financial statements, calculation of child and spousal support, budgets, income summaries, analysis of settlement proposals and any other financial assistance required.
Lawyer to Lawyer Negotiation:
In the traditional divorce model, each party is represented by their own lawyer. Financial information is exchanged and reviewed. Lawyers typically communicate with each other via written communication and, depending on the cooperation between counsel, can be constructive and supportive, or can become protracted and positional. Hiring a lawyer that you connect and communicate well with is important so that they can advocate on your behalf. Proposals are made and considered, and if agreements can’t be reached then the case may proceed to court or arbitration.
How Terri can help:
Completion of financial statements and disclosure summary; review of settlement options and their implications.
Arbitration:
An arbitrator is typically a highly experienced family law lawyer and acts as a private judge. Your matter is closed to the public, as is all your personal information. The arbitrator’s decision is binding and based on legal rights, as opposed to your unique needs. As in the court process, a third party makes decisions for you; parties lose control of the process as a result and have a limited voice.
How Terri can help:
Completion of financial statements and disclosure summary; review of settlement options and their implications.
Court/Litigation:
It is estimated that only 3% of family law cases justify going to court. Exceptional circumstances include safety issues and domestic violence, or non-compliance with disclosure requirements. By going to court, you lose all control of the process, and a third party (the judge) rules on the issues at hand. This process tends to escalate conflict and costs and should be considered only as a last resort. Some countries mandate the use of Alternative Dispute Resolutions (Mediation or Collaborative) prior to allowing a matter to be tried in court. All information becomes public as well, including financial and personal.
How Terri can help:
Completion of financial statement and disclosure summary; discussion of alternative processes and how they might work for your family; referrals to legal professionals versed in court process who will advocate for you.
Other: Co-Habitation and Pre-Nuptial Agreements:
Marriage contracts provide a way to opt out of the property provisions set out in the Family Law Act. Fundamental to this is a clear understanding of what a party is being asked to give up. Financial disclosure is therefore crucial, along with Independent Legal Advice to ensure a contract is enforceable. Contracts can be negotiated using the Collaborative Process or Mediation and are highly recommended for second marriages. By using an independent and non-biased professional working for both of you, you can feel confident your agreement will stand the test of time.
How Terri can help:
Completion of Statements of Incomes, Assets and Debts and referrals to legal professionals.