It seems to often be the first thing that many divorcing individuals think of - I need a lawyer.
Yet it is estimated more than a third of all family break-ups do not go through the legal process. Many family lawyers and judges would agree that the current family legal system is not working well. Using the same principals of proving ‘blame’ in the traditional non-family law system only seems to perpetuate the cycle of blame, which hinders each spouse from moving on.
What is not as well known is that each lawyer has a very unique style and preferred method of working a divorce file within the legal framework. A lawyer’s expertise is with the legal framework. The choice of a lawyer has a great bearing on how your case will proceed.
So, how do you know which lawyer is right for you? First familiarize yourself with the different negotiation models. When you and your spouse decide which model best suits your particular needs, then you can proceed to screen for a qualified lawyer to assist with your case.
Do I need a lawyer? If you and your spouse are on good speaking terms, you may not need a lawyer to draft your separation agreement, property settlement, or parenting plan. Yet many jurisdictions require independent legal advice before signing and finalizing any agreements. Having a good understanding of the legal system while drafting those documents helps you avoid putting a lot of time and energy into a document that goes counter to the family’s best interests and could be challenged legally.
It is always recommended that you look for a lawyer that specializes in family law. If you choose to work with a lawyer that works within a multitude of fields (real estate, wills & estate, commercial, intellectual property, personal injury, etc.), it may be that you are paying too much for not enough expertise in family-law which is what you need them for.
Finding a Family Law Specialist is the ideal. This lawyer only works within the family law spectrum and has attained special recognition for their advanced understanding of family law.
There are several different negotiation models within which to draft your legal documents and settle your divorce. Take your time in reviewing the following major models and determine which option would work best for your family.
Kitchen Table
In this model you retain the most control over the process. You and your spouse can determine the outcome of all issues pertaining to your family. The success of this model is dependent upon good communication and an understanding of the basics of your state/provincial family laws. To formalize your divorce documents you will still need independent legal advise and to file with the court.
Mediation
In this model you and your spouse still retain control over the decisions made. Hiring a mediator to assist you through the negotiation of a few sticking points, you work together to develop solutions for your family’s transition. Mediators can either be non-lawyers or lawyers, depending on your preference. You can also choose to involve your legal counsel in the process or not.
The mediator is a ‘neutral’ party and cannot give you legal advice during the process or advocate for one party or another.
Negotiation
Negotiation is employed by many lawyers to work with both parties to negotiate solutions to your family’s transition, within a legal framework. You and your spouse work with your individual lawyers and may keep the same lawyers should the negotiations break down and you choose to go to court. You are very dependent upon the negotiation skills of your lawyers and the relationship that your two lawyers already have.
Collaborative
Collaborative Practice involves a special contractual agreement between you, your spouse, and specially trained collaborative lawyers that work with both of you to work out solutions to your family’s transition, within a legal framework. You and your spouse direct the process priorities and work together with each of your lawyers’ legal guidance. The main components of this agreement are to treat each other with respect and to agree not to go to court. In the event that either party chooses to go on to court, both lawyers withdraw from your file and you have to hire new lawyers.
What are the differences between Collaborative Law and Mediation?
Within mediation, there is one “neutral” third party mediator who helps the couple try to settle their issues. The mediator, may or may not be a lawyer. As a mediator, they cannot give either spouse legal advice, and cannot be an advocate for either side. If the couple have hired lawyers, they may or may not be present at the negotiation.
Collaborative Practice was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same absolute commitment to settlement as the sole agenda. Each client has quality legal advice and advocacy built into the process at all times. It is the lawyer’s job to work with their own clients and one another to assure that the process stays balanced, respectful and productive.
Team Collaborative Practice
Within the Team Collaborative Practice model, you can enter the process through whichever professional you choose to work with. Together, the family therapists, financial divorce specialist, parenting plan specialist and lawyer work together on your behalf.
The Team Collaborative Practice Model is the process of the future. It best supports the entire family throughout the divorce and separation process and provides expertise in varying amounts, dependent upon the needs of the family. Within the Team Collaborative Practice model, you can enter the process through whichever professional you choose to initially work with. Together, the divorce coaches, financial divorce specialist, parenting plan specialist and collaborative lawyers work together on your behalf.
Through a series of 3, 4 and 5 way meetings the settlement agreement issues are worked out with the appropriate expert professionals. It has been shown in communities where this model is practiced, that it is much cheaper than going through traditional litigation.
Arbitration
Arbitration can be binding or non-binding where you hire an independent arbitrator to hear your case and give you a ruling. This is similar to court, without the greater additional expense. You are giving another person the ability to make decisions regarding your family’s future. This may be helpful if there is no cooperation on a particular issue that you and your spouse cannot find a solution to. You can choose to involve your lawyers in this process, or not.
Litigation - Court
This is a very expensive process that is not only a drain on your family’s financial resources, but is emotionally taxing as well. Each lawyer makes the best case for their client, often working hard to discredit the other side. In the end, a judge makes a ruling on the issues that are at an impasse and imposes that decision on your family’s future. Judges often bring their own biases to the process and may or may not have a background in family law. It is estimated that 10% or less of all divorce files should actually go to court.
