Five Things We Like About Collaborative Divorce
Thème: Family Law juillet 29, 2021 by Patricia Simpson
Many of us in the Family Law Group at LMR are members of Collaborative Practice Ottawa, and fans of the collaborative process for resolving the matters that a separating couple needs to address. Here are the top 5 reasons why the collaborative process is a good option.
- It’s Amicable. Most people would prefer not to go through a separation or divorce at all. If you have to do it, many would choose an amicable separation overheated battle. The collaborative process is designed to address even the difficult and touchy matters in a respectful and dignified way. The collaborative process preserves and builds on the goodwill the couple already has. (And yes, if there isn’t any goodwill, we use the collaborative process to help build some!) In many cases, in particular where there are children, the separation agreement is not the end of the process: it is the beginning of a new chapter for the separating couple. You are well on your way if you used an amicable process to begin that new chapter.
- You Have a Team. Each spouse in the collaborative process has his or her own collaboratively-trained lawyer to provide advice and facilitate communication. With that support you can move quickly through the things that do not matter to you, and focus your energy and efforts on reaching an agreement on the things that do matter to you. We use other professionals in the collaborative process also: often a family professional and a financial professional. Sometimes the financial part of separating is complicated—in the collaborative process the financial professional efficiently understands the financial data, explains it to you and your spouse, generates creative options, and helps you and your spouse to decide what financial agreement is fair and best for both parties and any children. The family professional in the collaborative process will help you and your spouse to put the children first. Often the family professional helps the couple to prepare a parenting plan. He or she can help each member of the family through what is often a very difficult and stressful time. When negotiations get difficult, heated, or emotional, the family professional is there to help each spouse communicate and negotiate productively.
- You and Your Spouse Decide. Some legal processes (like court and arbitration) put the decisions in the hands of a judge or an arbitrator. Each side makes a “presentation” or sometimes many “presentations” and then the decisionmaker, having spent not that much time with either spouse, and little or no time with your children, makes rulings that impact both spouses and any children in significant ways. And the judge or arbitrator is confined by legal rules and parameters about what he or she can order! There are some cases where the judge would like to rule in a certain way but cannot, because the law restricts him or her from doing so! The collaborative process allows you and your spouse to be more creative and to make trade-offs that can make both parties happier. There is a higher likelihood that both spouses will be reasonably content with a separation agreement that they have negotiated. Your Team has learned a lot about your family and has advised you about what is likely to work for you. A court or arbitration order usually makes at least one and often both parties very unhappy, and can lead to more conflict and more litigation.
- The Sticky Table. In the collaborative process, both spouses and their lawyers sign an agreement committing to the collaborative process. You always have the “out” of going to court and having a judge decide, but there is a built-in disincentive to do so: the agreement generally provides that there is a waiting period (perhaps 30 days) and both parties then have to hire new lawyers to represent them in court. This makes it hard to be “positional” and encourages everyone to come back to the negotiating table, where you have a Team that will help you over the rough or contentious patch.
- Timing and Cost. Most separating couples would like to resolve the issues arising out of their separation on a timeline that makes sense for them and at a reasonable cost. Many people are shocked at how long a family law file typically takes to wind its way through court. Even if one party is dragging his or her feet at the beginning of a court process, by the end of the court process most parties think the matter has gone on too long. A collaborative process lets the couple work through the separation at a speed that works for them. If one party needs things to slow down a little, we can make adjustments that still keep the process moving. There are many steps to a court process that both parties would probably agree that they would prefer not to pay for. A collaborative process gives you and your spouse control, so you spend your time and money working on the important things, and not on unimportant things.
In short, the collaborative process makes the best of an often difficult situation. The collaborative process puts the separating couple in charge, with advisors that provide the knowledge and assistance that the couple needs (lawyers, financial professionals, family professionals). The couple decides what is and is not important to them, and chooses solutions that work best for their family. The couple has the benefit of the Team to ensure they understand the law, the financial consequences, and the emotional impacts of a separation on the family members. The Team helps the couple address any difficult or contentious issues in a dignified and respectful way. Working through the collaborative process to arrive at a separation agreement helps to set the tone for future communications between the couple.[ssba]