Options for Divorce
It is a common misconception that to get divorced everyone hires a lawyer and takes on their spouse in a litigation battle that is finally decided by a judge at trial.
While all divorces must go through civil court in order to be recognized, only one percent of divorces in Canada actually end up going to trial. More than 80 percent are uncontested. Even when divorcing couples don’t agree on all the issues involved in their separation, many avoid litigation altogether, because there are other options, including mediation, collaborative law, arbitration and even do-it-yourself divorce.
Becoming more common in some provinces, do-it-yourself divorce is an alternative for couples seeking an uncontested divorce who want to avoid costly legal fees. With this approach, spouses draw up their own separation agreement without lawyers and submit it to a judge using a prescribed set of forms. There are step-by-step guides to help you with this process should it be appropriate for you. It’s easier than you think and it will save you thousands of dollars.
For this approach to work, you and your spouse need to communicate well and have a low level of conflict. If you have been married for more than a few years, have considerable family assets to divide, and/or have dependent children, I would strongly advise you to at least consult a lawyer. The issues involved can be complex, and any settlement must be fair. You will each need your own lawyer, one lawyer cannot advise both parties.
Collaborative law is a process whereby the divorcing couple and their lawyers sign an agreement not to go to court. Instead they work together cooperatively to reach a settlement. It is a non-adversarial team approach that brings together family lawyers, divorce coaches, financial advisors and other specialists as needed to help the couple reach a divorce settlement. The agreement they sign also requires them to practice open and honest communication including the sharing of complete financial information.
Both spouses are represented by their own collaborative-law lawyer in a series of meetings designed to resolve the usual issues that come into play with separation: division of property and debt, parenting and support. The agreement reached though the collaborative law process is a legal contract.
If for some reason either spouse wishes to opt out of the process and go to court, they can do so, but both lawyers involved will have to remove themselves from the case.
Like mediation, collaborative family law is growing rapidly in provinces like British Columbia. Both approaches allow divorcing couples to come up with their own solutions, instead of having them imposed upon them by a judge.
Collaborative law may not be appropriate in cases where there have been issues of family violence or child abuse, or if one spouse won’t participate fairly in the process.
In all other cases, collaborative law is the best place to start. If both of you are willing to open up, be flexible and negotiate, this approach will provide a fair and equitable settlement for both parties – with no need to go to court. Best of all from an emotional standpoint, you will get a divorce in an atmosphere of honesty and mutual respect, rather than treating each other as enemies. For more information see What is “collaborative family law”?
Mediation is a process that involves a neutral third party – the mediator – to work with the divorcing spouses in order to arrive at a negotiated settlement outside the courtroom. Unlike the win-lose nature of the litigation process, which focuses on the opposing legal rights and obligations of the two parties, mediation allows people to reach agreements that meet everyone’s interests. By nature, it is a process involving compromise where there are areas of dispute, but the goal is to arrive at a settlement that leaves both parties as happy as possible. The terms of settlement can be set out in a consent order, a separation agreement or in minutes of settlement, all of which are legally binding documents.
As with collaborative law, if there is family violence involved or a serious power imbalance between the two spouses, mediation is probably not the best solution.
While mediation has many positives, it has some drawbacks. It can result in a result that is unduly favourable to one spouse if the mediator is inexperienced or biased. And since disclosure of financial information is purely voluntary, your spouse could potentially hide assets or income.
For more information see About mediation.
In family law arbitration, the two spouses pick a neutral third party who acts as their own personal judge to rule on their case without having to go to court. The arbitrator is given the authority to impose a resolution after hearing evidence from both sides. The arbitrator’s decision is legally binding.
In many ways, arbitration mirrors the process that would happen if you went to court, with several big differences: the arbitration process is private, you get to choose who the judge will be, and you can decide on the particular rules that will apply to the process. In other words, unlike going to court, the parties are much more in control of the process.
Arbitration is a faster and far more cost-effective way of resolving disputes than going to court. While arbitration is rarely followed in family cases in B.C., that will likely change with the new Family Law Act, which strongly advocates the use of “family dispute resolutions,” which include arbitration.
Arbitration is not a good approach if one party is deceptive, reluctant to share financial information or has little regard for the rule of law. The spouse in question will likely need the authority of the court to ensure they follow due process. Regardless, you should discuss the pros and cons of arbitration with your lawyer before taking that approach.
Some mediators will act as arbitrators as well. In this case, couples can sign a mediation/arbitration agreement at the beginning of the mediation process, and should mediation break down, the mediator assumes the role of arbitrator and imposes a settlement. You should be very clear you understand the terms and implications of such an agreement before you sign.
For my part, I would never consider arbitration. While unlike court it is a private process, you still are putting your fate in the hands of a single judge.
For more information see Arbitration Act.
In a contested divorce where spouses cannot agree on key issues such as parenting, division of family property or spousal and child support, litigation — using the law and the courts — is the traditional and final option.
A litigated divorce usually involves each side engaging a lawyer to represent them. Some people try to do it themselves, but the process and issues involved are highly complicated and I would advise against it. See The Contested Divorce Process for an outline of a typical litigated divorce.
Litigation is by definition an adversarial process. It’s a game of winners and losers, and it can get extremely emotional. You and your spouse are on either side of a battleground with your lawyers fighting for advantage. Often, they both try to show how their client is the better person and how the other spouse is unfit or at fault. This can have a disastrous impact on your family. And if you get as far as a trial, the gloves really come off as the opposing lawyers try their best to make the spouse on the other side look bad. After going through that, the chances of having any sort of amicable relationship with your spouse are slim to none.
It doesn’t have to get that bad. Your lawyer’s job is to negotiate on your behalf. Letters go back and forth as each side puts forward its case. A good lawyer will be looking for possibilities for compromise and eventual settlement. You may not agree with your ex-spouse on many issues, but usually there is a way through to settling your differences.
The alternative is a full-blown trial. The threat of trial is a great motivator to get couples to bargain and settle. It’s an old but true cliché that many cases are settled on the steps of the courthouse.
Litigation is usually the costliest option for divorce. This is especially true if you fight all the way to trial. In my case for example, the fight was not worth it. If we had put all emotion aside and really negotiated, the two of us could’ve come to a similar settlement to what the judge ruled and save hundreds of thousands of dollars.
Which Option is Right for me?
The reality is you may not get to choose. There are two people involved and if your ex-partner is unwilling to cooperate or won’t agree to one of the alternatives to litigation, there’s not much you can do about it. In my case, I wanted for us to try mediation, but my spouse went ahead and started a litigated action against me and I had no choice but to follow suit.
My advice is to consider carefully all the options. If there’s no family violence involved and you and your spouse can at least communicate on some level, collaborative family law is the best place to start. Even better, if you and your spouse can agree on all issues, an uncontested divorce that you do yourself is by far the cheapest and quickest option.
To be eligible for an uncontested divorce, both you and your spouse have to agree on the basic issues at play in a separation:
- You both want to divorce;
- You agree on a division of family property and debts;
- You agree on child and spousal support;
- You agree on parenting.
If you disagree about any or all of the above then you are heading for a contested divorce