Is Collaborative Family Law Right for You?

 

Author: Nicole Abergil

If you and your partner want to resolve your legal issues out of court, collaborative family law may be for you. The adversarial legal system is the traditional approach for divorcing couples, but family court and the divorce process can have a significant personal and financial impact on both sides. Mediation is another powerful alternative dispute resolution method where a neutral facilitator helps both sides come to an agreement. However, collaborative law has gained significant popularity because the process empowers both sides of the separating couple to create their best possible agreement.

What is collaborative family law?

Collaborative family law is a way for divorcing partners to resolve their disputes respectfully without going to court. It’s also referred to as “no-court divorce” or “divorce with dignity.” This process offers couples support and guidance from a lawyer trained in collaborative family law and potentially additional professionals such as financial specialists.

Collaborative family law is a voluntary process, which means that you and your partner must both agree to the process and cannot be forced to agree on your issues. Typically, you’ll have several meetings with collaborative professionals before you and your partner agree on your issues. A significant benefit of using this process is that as parents, you’ll make your children a priority in co-parenting and child custody. Additionally, you’ll have a whole team of experts working with you to come to a mutually acceptable settlement.

The foundation of collaborative law is the written agreement between all parties that the collaborative lawyers are retained solely to facilitate the negotiation of a mutually acceptable agreement. If either party wants to go to court, the collaborative lawyers are prohibited from further representation. Collaborative family law recognizes that courts may not be an appropriate forum for resolving family disputes, which are as much about feelings and relationships as legal issues.

What are the requirements

Couples who choose collaborative practice must commit to:

  • Being respectful
  • Coming to a mutually acceptable settlement
  • Communicating and sharing information openly while making full disclosure
  • Creating solutions that take the highest priorities into consideration, e.g. putting your children first
  • Listening objectively and remembering that your needs and those of your partner require equal consideration

Collaborative Family Lawyers

Collaborative family lawyers have special training to narrow in on both partner’s interests, needs and legal rights. They help the couple come to an appropriate solution in a cooperative way. They create a forum for support partners to speak openly with each other. They ensure that both partners have all the necessary information and documents they need to make an informed decision. Collaborative family lawyers agree not to go to court in writing and are thus, committed to helping partners reach a settlement. Once an agreement is reached, your collaborative lawyer will draft a separation agreement for you.

The Process:

  1. You and your partner hire a family lawyer, specifically trained in collaborative family law. You may also hire a collaboratively trained financial professional or child specialist.
  2. You and your partner must sign a participation agreement where you both promise to communicate respectfully, negotiate towards a settlement, and voluntarily disclose all relevant information, including financial information.
  3. You’ll have a series of structured settlement meetings with a focus on open communication. This is a team-based approach to resolve your dispute and agree to terms involving financial, legal, and child-related matters.
  4. Once you and your partner reach an understanding that makes you both feel satisfied, your collaborative lawyers will draft a written separation agreement. Once signed, the separation agreement is a binding and enforceable contract.

The Advantages of Using Collaborative Family Law

  • It can be a faster process than going to court.
  • It can be less expensive than going to court.
  • You have a professional support team trying to help you reach an agreement.
  • You have much of the control in the process in regards to timing and results as opposed to going to court or arbitration where a judge or arbitrator would be deciding your issues.
  • You strengthen your ability to cooperate and improve your ability to communicate, co-parent and resolve future issues.
  • Some people feel they’re able to negotiate better once they’ve agreed not to go to court. 

The Disadvantages of Using Collaborative Family Law

  • You and your partner must agree on all details before signing the participation agreement.
  • You must hire your own lawyer and if you choose to, other professionals such as financial planners, which can be expensive.
  • It’s not suitable in the event that there’s an emergency that requires obtaining a court order quickly, e.g. if there is a risk that your partner is leaving the country with your children.
  • If there is a history of abuse or you believe your partner will not be truthful and open, you may not be able to negotiate fairly or safely, even with specially trained professionals.

Take all of these factors into account to make an informed decision that works best for you. Visit the Ontario Collaborative Law Federation (OCLF) to find a collaborative family lawyer near you.

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