Family Finance Solutions
Process Choice is about the approach or method you and your former partner use to reach agreements. Some processes allow for clients to be very much involved throughout the negotiation and often lead to a settlement that is more oriented towards the unique goals of the individuals and the family. Others will have the lawyers negotiating on your behalf and, at the extreme end, will involve a judge making the decision.
Collaborative Practice is an interest-based, settlement-oriented process where the clients are very much involved in crafting an agreement that works best for their family. The process is designed to offer support and guidance to each spouse throughout the negotiation.
Each spouse has his or her own lawyer who has specialized training in the collaborative process, negotiation and communication. The lawyer is still very much your advocate but, instead of taking a positional view of the law that only benefits their own client, they are also concerned about the overall well-being of the family. There are huge benefits to this including cost savings and productive negotiations. This allows the best chance of coming to an agreement where the family is able to preserve relationships in the best interest of the children.
Financial and family professionals, who are also collaboratively trained, can be jointly retained in a neutral role to help streamline the process and reduce the cost, add value to generating options for settlement, and help you navigate some of the difficult financial and emotional aspects of your situation.
One of the key components of collaborative practice is that neither of the collaborative lawyers or other team members are permitted to represent you or your former partner in court if the attempt at a collaborative resolution fails. This is a key element of the collaborative process: it keeps both you and all the professionals focused entirely on settlement and allows you to have safe conversations that will not be used against you later.
In mediation a couple works with a neutral mediator who helps them discuss and negotiate the issues that arise from separation. Many mediators use the same interest-based negotiation approach that is used in the collaborative process.
Often the spouses work directly with the mediator without their lawyers at the table but, if necessary or preferred, the lawyers may attend the mediation sessions. Regardless of whether lawyers are present at the session, each spouse needs to have his or her own lawyer to receive independent legal advice. It is best to obtain independent legal advice regarding your rights and obligations early on and often throughout the mediation process.
Co-mediation also allows for the integrated involvement of financial professionals and family professionals.
Mediation-Arbitration is a process that some people choose where they work with a mediator who will become an arbitrator if a negotiated decision cannot be reached. The mediator becomes a private judge, hears evidence and submissions and renders a binding decision, subject to certain rights of appeal.
Traditional Lawyer/Lawyer Negotiation
In traditional negotiation, each spouse retains his or her own lawyer. The first step is often the exchange of financial documentation which includes a statement of all your assets and debts as well as your sources of income. The lawyers then usually exchange settlement proposals and counter-proposals.
When the issues are narrowed, there may be a four-way settlement meeting. If a negotiated settlement is not reached or deemed likely, the lawyers commence a litigation or arbitration proceeding.
Typically, if a financial person is retained, it would not be a joint retainer.
Litigation or Arbitration
When a couple is unable to reach agreement on one or more issues, it may be necessary for a court or arbitrator to make the decision. The family court system in Ontario is case managed and designed to encourage early settlement although the process often feels long to most people.
The first stage of a court proceeding is a Case Conference in which the court ensures that financial disclosure is being exchanged. A motion, or many motions, to obtain necessary information and determine interim financial and parenting arrangements often follow the Case Conference. After that there is a Settlement Conference in which the judge attempts to assist the couple in settling the issues in dispute. Most cases eventually result in settlement, often after considerable emotional and financial cost and delay.
Arbitration is similar to litigation except that the person making the decision is an experienced family lawyer hired by the spouses. Arbitration is usually quicker and more streamlined than court and is private rather than public. The ruling of an arbitrator is binding in court, subject to certain rights of appeal.
‘Kitchen Table’ Negotiations
Some couples with simple financial situations are able to discuss and negotiate some, or all, issues themselves. It is still important to exchange financial disclosure and a financial divorce professional can help you with this.
Family Professionals can help you with any parenting issues as well as help you navigate any emotional elements that might exist. It is also important to retain a lawyer for independent legal advice and to prepare a legally binding separation agreement.
You May Be Asking…
Which Process Is Right For Me?
My belief is that, with very few exceptions, people with a common goal of minimizing the impact of the separation on their children and retaining as much of their wealth as possible can negotiate a successful agreement in Collaborative and Mediation processes.
If you think that you and your former partner are able to work in the same room with a mediator, then mediation may be a good, cost-effective fit. Depending on the complexity of your situation it may be best to have your lawyers involved throughout the process. If you need your lawyers involved throughout it may be more cost effective to go with a collaborative process.
If you or your former partner are worried about being able to speak up for yourselves and/or there is a power imbalance around information or negotiation, the extra support of your lawyer in collaborative practice may be a better fit. Also, if you think the extra support in preparing for meetings and making decisions would be helpful, then collaborative practice may be a better decision than mediation.
Either of the models can integrate legal, financial, and family professionals.
Get In touCh
Alison offers a free 30-minute consultation
Certified Financial Planner
Alison has the knowledge, skills, experience and ethics to examine her clients’ entire financial picture, at the highest level of complexity required of the profession.
Financial Divorce Specialist
As a Chartered Financial Divorce Specialist, Alison has a focused financial expertise in the areas of cohabitation, separation and divorce.