Divorce Process

  • How can I make the divorce process move faster?

    The amount of time the divorce process takes depends mainly on how complicated your case is. Simple divorce cases can take a few months or even less, but a divorce with complex financial, property, or custody issues usually takes far longer. Usually, your divorce will be final shortly after you and your spouse reach an agreement – or after a judge makes the decisions for you.

    One way to makes things go more quickly is to cooperate with your spouse, in order to avoid the wasteful conflicts that lead to lengthy court battles. If you and your spouse (and your respective lawyers) can create an agreement that works for both of you, you will save a significant amount of time and money. However, keep in mind that this might require both you and your spouse to make compromises on some issues. Ask yourself whether it's really worth the time and money to take your spouse to court over certain issues between you. If you're determined to "win" against your spouse in every aspect of your divorce, then get ready for a long, costly, drawn-out fight in court. But the more you're willing to work constructively with your spouse, the faster and easier your divorce will be.

    Whether you're litigating or settling, you can also help your divorce along by preparation and by cooperating with your lawyer. You can avoid unnecessary delays by providing documents and information that your lawyer needs right away and responding immediately to his or her requests. Also make sure that your lawyer prepares you well: Get the legal advice you need right at the outset, to prevent you from acting in ways that might result in legal delays or costs. If you have time, it's also a good idea to educate yourself on divorce law in your state. The better informed both you and your lawyer are, the better prepared you both will be – and the smoother your divorce case will go.

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  • How can I lower the overall costs of my divorce?

    The overall costs of your divorce depend mostly on how complicated and/or adversarial your particular case is. A simple divorce with mutual agreement and few or no property/custody issues will usually be quick and inexpensive. However, if your divorce is more complex and takes a long time to resolve, you are certain to pay more in legal fees. Even if this is the case, however, there are ways to lower your costs.

    If your spouse is willing to discuss the issues peacefully in a noncombative setting, you may wish to try mediation. This popular alternative to court battles allows the spouses to work out an agreement themselves under the supervision and guidance of a professional mediator (often a lawyer or counselor). Typically, each party employs a lawyer to give legal advice in the process. Although it's not recommended for every case, mediation usually saves both time and money in resolving divorce cases.

    Similarly, resolving your divorce in an out-of-court settlement (if possible) will be far less expensive and time-consuming than slugging it out in court for weeks or even months. In a court battle, the fees keep piling up until the end is finally reached, but an agreement will avoid such excess time and financial expenses.

    Whether you're mediating, settling, or litigating your divorce, one smart way to save money in the long run is to use your professionals' time more efficiently. Lawyers, accountants, counselors, and other divorce-related professionals typically charge fees by the hour. So you don't want to waste their time and your money on irrelevant or wasteful issues. For example, remember not to use your lawyer as a therapist; he or she may sincerely sympathize with your emotional distress, but that's not what you're paying the lawyer for. You can also save your lawyer a lot of time by providing all relevant information for him or her right away. This way, you don't have to pay the lawyer extra for unnecessary research or waiting. The more prepared your lawyer is, the better (and more economically) he or she can serve you.

    Divorce can be very expensive, and it's understandable that you would want to lower the overall costs. However, don't sacrifice your chances of getting an acceptable outcome for the sake of saving money. Don't pick a lawyer solely on the basis of lower fees; make sure that he or she will do a good job as well. Getting the best possible long-term results may be worth spending a little extra.

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  • How is "collaborative law" different from mediation or traditional settlements?

    Collaborative law is a dispute-resolution alternative in which both parties' lawyers agree to work together toward a settlement without litigation. Invented by Minnesota matrimonial lawyer Stuart Webb, collaborative law also involves a written agreement stating that both lawyers must withdraw from the case if either party chooses to initiate adversarial court proceedings.

    Like mediation, collaborative law aims to resolve divorce and other types of disputes through cooperation between both sides – with a much lower financial and time expense. However, one of the primary differences is that the parties themselves negotiate the terms of their own divorce in mediation, under the supervision or guidance of a neutral mediator (often a lawyer or counselor). Each mediating party may hire his or her own lawyer for individual advice. But in collaborative law, each party hires a lawyer who specializes in the collaborative law alternative, and their lawyers do the negotiating – with their clients' best interests in mind. Whereas mediation may not be appropriate in cases where there's a power imbalance between the parties, or there's any other personal disadvantage for one, collaborative law can eliminate this potential problem through having the lawyers negotiate on behalf of their client's interests. (Often, a neutral professional such as a financial planner, custody evaluator, or therapeutic "divorce coach" is brought in as well.)

    Whereas all matrimonial lawyers can negotiate peaceful settlements in divorce, collaborative law is different in that, again, litigation is completely ruled out as an option. Sometimes, an attempt at a settlement may result in litigation if one of the lawyers and/or parties is unreasonable about his or her terms or feels that the other party is being unreasonable. In collaborative law, however, both lawyers have agreement as their primary goal, rather than satisfying their respective clients' separate agendas.

    Collaborative law works as a four-way negotiation process to reach a win-win solution to divorce, involving the lawyers' problem-solving skills rather than their adversarial instincts. Once an agreement is reached between both parties and their collaborative lawyers, the lawyers officially prepare the agreement, the divorce is settled, and clients hopefully move on with their lives.

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  • I would like my divorce to go smoothly; what advice can you give me?

    Divorce is traumatic. It is not realistic to expect that a divorce will be painless or that the road to divorce and separation settlement will not have bumps along the way. The following points may lead to a less stressful divorce, if not necessarily a smooth one:

    1. Avoid Court if possible: Court proceedings should be used as a last resort, where negotiation or mediation outside of court will likely not result in a reasonable settlement. If there is a possibility of reaching a negotiated settlement prior to court proceedings being commenced this possibility should be fully explored. Once the divorce is in court there are often lengthy delays and related expenses, and court proceedings tend to create more animosity between parties, not less.
    2. Be realistic: There are two sides to every divorce story. Whether your divorce proceeds through negotiation, mediation or court, it is not realistic to expect that one party will be the "winner" and the other side will be the "loser" in the divorce. Usually court judgments and negotiated settlements take into account the interest of both sides and the children, and court decisions and negotiated settlements are seldom one-sided victories. Parties to a divorce should avoid going into the process with an "I am going to take him/her to the cleaners" mentality, as this will lead to added expense and ultimate disappointment with the result.
    3. Remember the children: Children have the right to know both their parents and spend as much time with each as may be in their best interests. Children are often more flexible and adaptable than parents in divorce proceedings give them credit for. Attempt to be creative with your former partner in coming up with a parenting regime that works for the children. Remember that your former partner has qualities you once admired that may likely benefit the children. Unless there is no other way, do not delegate decision-making powers regarding your children to a third-party judge or arbitrator who does not know your children.
    4. Disclose, Disclose and Disclose: In Ontario where I practice family law, full financial disclosure in a divorce proceeding is a must. This includes disclosure of any and all relevant income, business or company information of a payor. Often this disclosure may include financial records going back three years or more. The theory is that a fair settlement or judgment is not possible without full and frank financial disclosure. The quicker that disclosure is provided on a voluntary basis, the less expensive the ultimate settlement or divorce judgment will be to obtain.
    5. Get Good Counsel: Other than the simplest of divorces where there are no children, no property and a very short term relationship, divorce and separation proceedings are complicated. There are a number of ways to resolve divorce and separation disputes, either through mediation, negotiation, collaborative law or court. Do your research and find a lawyer or mediator trained to deal with divorce and family separation that you are compatible with and who can assist you through the process.

    Divorce and separation is not a smooth process. The five points set out above will minimize the financial and emotional distress caused by the process; however, they will not likely eliminate them altogether.

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  • Can I prevent my spouse from obtaining a divorce?

    Can one spouse prevent the other spouse from obtaining a divorce if the first spouse does not want to be divorced and wishes for the marriage to continue?

    The short answer is no; a divorce may be delayed but ultimately not stopped as a matter of public policy.

    In Canada, divorce is governed by the Divorce Act (Canada). Section 8 of the Divorce Act provides that a divorce may be granted by a court on the grounds that there has been a breakdown of the marriage. By far the most common ground for the breakdown of marriage is that the parties have lived separately and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separately and apart at the commencement of the proceeding.

    Nonetheless, Section 11 of the Divorce Act requires the court to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, and if such reasonable arrangements have not been made, the granting of the divorce may be stayed until proper child support arrangements are made.

    Section 11 prevents "quickie" divorces in situations where there are dependent children who require support. The applicant to the divorce proceeding is required to swear an affidavit attesting to the amount of child support he or she is required to pay under the Child Support Guidelines, or is entitled to receive, and if he or she is paying or receiving less than the amount required under the Child Support Guidelines, a detailed and sufficient explanation for the discrepancy must be provided to the court prior to the divorce being granted.

    Further, in a contested divorce proceeding involving many issues in dispute, such as parenting issues, support issues and property issues, courts will usually not grant the final divorce until all of the "corollary" or other issues aside from the actual divorce have been dealt with either by agreement or final court order.

    The Ontario Family Law Rules provide the court with the discretion to split the divorce from the other issues and grant a divorce prior to the resolution of the corollary issues. The court will not permit a party to proceed with the divorce prior to the corollary issues being resolved if proper child support is not being paid, as discussed above, or in situations where the other spouse may be disadvantaged by the issuance of the divorce order prior to the resolution of the corollary relief issues.

    A common situation where a spouse may be disadvantaged by a divorce order is where one spouse is covered by the other spouse's health and dental benefits; however, once the divorce goes through he or she will be cut off the benefit plan as he or she will no longer be considered as a "spouse" under the benefit plan. If alternate arrangements are made, such as the extension of health or dental benefits or additional support being paid to cover the lost benefits, the divorce may be split from the corollary issues and an early divorce order granted.

    Ultimately, it is public policy in Canada that parties should not be forced to remain married if there has been a breakdown in the relationship. Provided that proper child support is being paid pursuant to the Child Support Guidelines, the corollary issues have been dealt with by way or court order or agreement, or if there is no disadvantage to either spouse to the granting of the divorce prior to the resolution of the corollary relief issues, the court will not stand in the way of a divorce.

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