In Ontario, there are several alternatives and possibilities for reaching a separation agreement and finalizing a divorce. An informed divorce involves conducting thorough research and having a comprehensive understanding of your options, enabling you to make informed decisions.
How can I get a divorce without going to court?
Individuals seeking family law attorneys often have different needs than those seeking other types of legal advice. If you’re navigating a separation or divorce, or if you need assistance with child custody, access, child support, or spousal support, your case directly impacts your life.
The family law attorney you select and the terms of the Ontario separation agreement can influence whether the divorce process is amicable or contested, further affecting your life. In this episode of The Smart Divorce with Deborah Moskovitch, divorce lawyer John Schuman helps us understand the differences between all the Alternative Dispute Resolutions (ADR methods) to consider when reaching an Ontario separation agreement. We discuss the importance of avoiding court appearances, as well as when it may be necessary. John has litigated in every level of family court in Ontario, so he is familiar with the outcomes — not just from a legal standpoint, but also from an emotional perspective.
What’s the cheapest way to divorce?
This is the situation where divorcing couples attempt to reach an agreement without the assistance of a divorce attorney. None of the family law attorneys I interviewed for my book, The Smart Divorce, recommended this divorce option. They opposed this choice because they believe it is crucial for individuals to understand their rights in terms of what they are entitled to, as well as their financial responsibilities and obligations in terms of child and spousal support. For example, you may be forfeiting or failing to claim your most valuable assets; you may not be acting in the best interests of your family. If you do decide to follow this path, it’s essential to seek independent legal advice from a family law attorney to fully understand your rights.
How do divorce attorneys negotiate settlements?
Consider negotiation as the process of taking your wish list for how you want to divide your marital property and what your parenting responsibilities should be, and using it as a starting point for what you end up with. It’s a compromise between you and your divorce attorney and the other spouse and their divorce attorney, all with the sole purpose of reaching a reasonable settlement agreement. It’s a negotiation between two parties, with their divorce attorneys on their side. We’re usually both attempting to get as much as we can.
Now, if you have to go to family court, you must also negotiate. The goal of this negotiation is to avoid a trial. When people file divorce cases, they expect some maneuvering and haggling and, ultimately, a settlement rather than a full-fledged courtroom trial. The usual tendency is to use the threat of a trial to get participants to settle and avoid going to court.
How does Family Mediation work?
Mediation involves the use of a family mediator – a neutral third party who assists the divorcing couple in reaching an Ontario separation agreement. A family mediator is a problem solver who assists a couple in reaching an agreement by facilitating communication between them. A qualified family mediator will assist the couple in identifying issues and exploring divorce alternatives that they might not have considered on their own.
Another advantage is that for some couples, mediation is more cost-effective because they split the cost of a family mediator rather than paying their respective divorce attorneys by the hour. Many divorce attorneys and clients prefer it because it allows both parties more control over the final outcome. However, it does require a willingness to collaborate, as well as honesty and complete financial disclosure.
A family mediator might be a mental health practitioner or a divorce attorney. Most divorce attorneys prefer that your family mediator be a divorce attorney while you’re resolving financial issues.
In my previous article, I delved into the role of mediation in resolving family law matters, a critical aspect of the divorce process. Now, I want to emphasize the importance of choosing the right mediator, a neutral third party, to guide the divorce proceedings. Once the parties agree to, or are ordered to participate in mediation, the process commences with the selection of a mediator.
The most cost-effective selection process begins with a review of the list of mediators on the Court Panel with the Alternative Dispute Resolution Department of the Los Angeles Superior Court. This list includes a Pay Panel and a Pro Bono Panel. It’s worth noting that the Court Panel pertaining to family law excludes child custody issues, a key component of many divorce cases.
To be on the Party Pay Panel, a mediator must have achieved a specified level of experience in court-connected cases. In other words, the required experience excludes mediation work that resolved an entire case outside of the court system. A mediator selected from this Panel cannot charge more than $150.00 per hour for the first three hours of hearing time. Any additional work conducted by the mediator, such as reviewing any mediation briefs submitted by the parties or time spent hearing the matter at the conclusion of the first three hours, is based upon the rates established by the particular mediator.
The Pro Bono Panel consists of those individuals who either lack the experience required for inclusion on the Party Pay Panel or who otherwise offer their services on a pro bono basis as a way of supporting the judicial system. Like the mediators on the Party Pay Panel, the mediators on the Pro Bono Panel may charge the parties for work time spent outside of the first three hours of hearing time. If the parties opt for a mediator from the Pro Bono Panel, a mediator who meets the case criteria will be assigned randomly. While the mediators on the Pro Bono Panel may be free, I have reservations about not being involved in the selection of the specific mediator.
Of course, parties may hire a private divorce mediator. It’s important to note that a person acting as a mediator is not required to obtain any type of license or certification. In fact, there is no such thing as a certified mediator, although some individuals present themselves as such. Consequently, there is no minimum training needed to become a mediator. Therefore, parties should acquaint themselves with a mediator’s training and experience during the selection process. The market rate for a private mediator ranges from $300.00 to $1,000.00 per hour.
The next factor to consider in selecting a mediator is the specific style of mediation practiced by any given mediator and whether that style is suitable for the needs of the particular situation. I will be covering that aspect of the selection process in my next article.
Collaborative Family Law
The idea is that divorce attorneys work solely to reach a divorce settlement. Clients and their divorce attorneys sign a contract agreeing not to go to court and to provide all relevant financial information. The goal of collaborative law is to establish an environment where a divorcing couple feels safe, where both parties believe they can make informed decisions about their own futures, and where they can work constructively despite their anxieties, anger, and resentment.
The traditional role of divorce attorneys is to advise their own clients on how the law applies to their specific situations. They also assist their clients in re-framing their thinking—developing goals rather than taking stances, and making good and ethical decisions. Both divorce attorneys and other members of their firms must withdraw from the case if either client decides to discontinue the collaborative process and proceed to court.
The Arbitration Option
Arbitration is similar to litigation in that it involves going to court, but it takes place outside of a courtroom. It’s a private matter. Divorcing couples and their divorce attorneys select a decision maker, who is typically a retired judge or a senior divorce attorney with experience in family law.
What occurs in arbitration is that the arbitrator makes the decision that the couple is debating. Unlike mediation, no one assists the couple in reaching a decision; it is made for them. And, in most cases, if you don’t like the result, you won’t be able to appeal it, which means you won’t be able to argue it out again in the hopes of convincing the decision maker to change his or her opinion.
What happens in the family court?
I’m not saving the best for last; I’m saving it for last because litigation is usually the last option. Preparing to go to court is emotionally draining and financially prohibitive.
Who hasn’t heard of Perry Mason?– When you’re on the stand and your divorce attorney is grilling you with questions, the judge has an aha moment and determines that you’re correct and the other party is wrong, and justice is served. It’s his word vs hers, and the fight begins there. The divorce attorneys strive to find flaws in your persona in order to prove that you are unfit. The adversarial process gets its name from this. There is a winner and a loser in this game. It isn’t a win-win scenario. It’s a conflict, and there are opposing forces.
A third party, similar to arbitration, makes the decision. You can’t choose your decision-maker in arbitration, and the judge doesn’t always have family law experience. Another distinction is that arbitration is private, whereas court appearances are public. The fact that the debate is public means that there is a public record of it.
For a more in-depth look at the conflict settlement options, read The Smart Divorce: Proven Strategies and Valuable Advice from 100 Top Divorce Lawyers, Financial Advisers Counselors, and Other Experts (available wherever books are sold)
ug of War – A Family Court Judge’s Perspective on Divorce Proceedings
Written by Deborah Moskovitch in Best Interests of the Children, Divorce, Divorce Options, Divorce Resources, Legal Divorce, Litigation. Last Updated July 12, 2023.
Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court
By Mr. Justice Harvey Brownstone
I recently completed reading the book “Tug of War” and I strongly recommend it as essential reading for anyone contemplating divorce litigation or other family law matters. During my research for “The Smart Divorce,” I found that most judges were reluctant to make their views public. However, Justice Brownstone has taken the bold step to communicate his perspectives to the public. The book is well-written, providing a real insight into what happens in family court. The endorsement from his colleagues adds to the credibility and accuracy of the information.
“Tug of War” is a unique book. Written by a sitting family court judge in layman’s language, it demystifies complex family law concepts and procedures, clearly explains how family court works, and offers essential divorce alternatives to help parents resolve their custody issues and keep their children out of the often damaging court system.
With breakup rates in North America skyrocketing, recent statistics indicate that 45% of marriages end in divorce. At the center of these divorces are countless children, thrust into a complex and seemingly impermeable family court system by their parents. “Tug of War” explains the role of divorce attorneys and judges in the family justice system and examines the parents’ responsibilities to ensure that post-separation conflicts are resolved with minimal damage to the children caught in the middle of parental disputes. Drawing on his fourteen years of experience on the family court bench, Justice Harvey Brownstone explores themes that apply to all families and parents in conflict, providing clear case examples in inclusive and accessible language.
“Tug of War” presents alternatives to litigation and dispels the myth that parents can represent themselves without a divorce lawyer in family court. Justice Brownstone reveals the inner struggles of parents, judges, and family lawyers in the whirlwind of marital conflict.
This book is a must-read for couples involved in or contemplating separation, family law judges, divorce lawyers, family mediators, parenting coaches, psychologists, family counselors, social workers, as well as students and professors of family law. It is endorsed by judges currently sitting in Ontario and New York State.
*100% of author royalties from this book will be donated to the Children’s Wish Foundation.
This book is available wherever books are sold, including amazon.com, amazon.ca, and many other online book seller sites.
By Elyse Rafferty Mitchell, Author of “Meatballs and Peanut Butter”
Reflecting on the days following my court appearance to finalize my divorce, the memories seem almost surreal. It’s as if I was observing the events from an outsider’s perspective. The divorce process was a challenging journey, one I wouldn’t wish on anyone.
In the realm of divorce proceedings, nothing comes easy, a lesson I’ve learned repeatedly. So, it was not entirely surprising when, on that emotional morning, as I sat in a sterile, light-filled hallway on the 20th floor in downtown Chicago, my divorce lawyer uttered some unexpected words.
“We might have a problem.”
In Illinois, divorcing couples with children are required to complete a parenting class before the divorce decree is issued. Many judges allow this class to be taken post-court, with the stipulation that the divorce isn’t “official” until both parties have completed the class. Unfortunately, we were assigned a judge who insisted on our completion of this class before even reviewing our case.
The words that followed were even more shocking:
“We’ll have to reschedule.”
Reschedule? I thought I misheard. Surely, we wouldn’t have to go through all of this again.
“We’ll have to reschedule after you both have completed the course.”
It felt as if I was listening to a foreign language. The words were audible, and I could see my attorney’s lips moving, but they didn’t make sense. How could we have overlooked this crucial part of the divorce requirements? Why hadn’t our lawyers insisted we complete this before our court date? Was this some cruel joke?
My attorney received an earful, fueled by my pent-up emotions. Instead of the metaphorical Devil vs. Angel on my shoulders, I had my ex-spouse, irate about the additional legal fees, and a dazed, confused version of myself, still in shock.
Looking back, it seems utterly absurd. It IS absurd.
My advice to divorcing couples: complete your class before your court date, regardless of your lawyer’s advice.
To cut a long story short, there is an online version of the class that my ex has already completed (kudos to him for his perfect score), and I need to complete it as soon as possible. Why wasn’t this mentioned months ago?
We are back on the court’s calendar for another attempt: May 23. Ironically, this will be our 9.5-year wedding anniversary, to the day. Fitting, isn’t it?
Navigating the complex waters of divorce is a challenging journey, one that requires careful consideration, informed decisions, and a comprehensive understanding of the various divorce options available. From uncontested divorce to contested divorce, from collaborative divorce to mediated divorce, each path offers its unique advantages and challenges.
The vast majority of divorcing couples seek to avoid the time-consuming and emotionally draining process of court appearances. They prefer to resolve their divorce issues through alternative dispute resolution (ADR) methods, such as divorce mediation or collaborative divorce process. These methods involve a neutral third party who assists in facilitating communication and negotiations, aiming for a reasonable settlement agreement that serves the best interests of all parties involved.
However, not all divorces can be resolved amicably. In cases of domestic violence or irreconcilable differences, a contested divorce may be the only viable option. This process often involves divorce litigation, where a judge or arbitrator makes the final decision on contentious issues such as child custody, spousal support, and marital property division.
Regardless of the divorce option chosen, it’s crucial to seek legal advice from a competent divorce attorney or family law attorney. They can provide valuable guidance on the legal process, help negotiate divorce settlements, and ensure that your rights and interests are protected.
In the end, the goal of any divorce process should be to reach a fair and equitable divorce agreement that minimizes conflict and promotes the well-being of all parties involved, especially children. Remember, the decisions made during the divorce process can significantly impact your life and the lives of your loved ones. Therefore, it’s essential to approach these decisions with care, understanding, and a focus on the best outcome for everyone involved.
Whether you’re considering an amicable divorce, a do-it-yourself divorce, or facing a litigated divorce, remember that you’re not alone. There are resources and professionals available to help you navigate this challenging time in your life. Stay informed, seek support, and make the choices that are best for your unique situation.
Navigating the complexities of divorce can be a daunting task. It’s a journey filled with critical decisions that can significantly impact your life and the lives of your loved ones. This is why it’s essential to make informed decisions and understand the various divorce options available to you, from mediation and collaborative law to arbitration and litigation.
Remember, you’re not alone in this journey. Professional help is available to guide you through this challenging time. A lawyer, along with a Certified Divorce Financial Analyst, can provide valuable guidance, helping you negotiate settlements and ensure your rights and interests are protected.
You’ve made a wise decision by educating yourself about the divorce process and the options available to you. Your next step could be to reach out to a professional who can provide further guidance tailored to your unique situation.
Why not schedule a Get Acquainted Call today? It’s a step towards gaining clarity and confidence in your decision-making process. Remember, the goal is to reach a fair and equitable divorce agreement that minimizes conflict and promotes the well-being of all parties involved, especially children.
Take control of your divorce process. Reach out today and let’s navigate this journey together.
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