Pre-divorce mediation is a way to go through divorce proceedings amicably, while minimizing cost. The benefits of pre-divorce mediation cannot be overstated; indeed, mediation offers an avenue that avoids expensive litigation and the acrimony it engenders. I have handled several mediations successfully, and would like to explain how it works.
To initiate the mediation process, both husband and wife must first meet with a family law attorney who is certified as a mediator. The first order of business in this meeting is to establish the role of the attorney. Once agreement has been reached that the attorney will act solely as a mediator–representing neither husband nor wife, dealing with all matters concerning the divorce–subsequent meetings focus on the substantive and outstanding issues between the divorce parties.
The resolution of some such issues-child custody, alimony, and the division of property, to name a few-may be long drawn. However, through skillful mediation that is sensitized to the individual needs of the divorce parties, an experienced attorney can help move the process forward. Take for example how pre-divorce mediation attorneys deal with the division of property, which, among other things, includes the distribution of all savings and investments, 40Ks, pensions, automobiles, marital homes, and personal property, as well as joint and personal debts such as credit cards, home equity lines, and mortgages. In pre-divorce mediation, both parties are tasked with listing all assets and liabilities in their possession, jointly and individually. An affidavit is then prepared in order to prevent fraudulent property claims. In the end, this transparency allows for the divorce to be resolved in a just manner.
If a resolution becomes impossible through mediation, then the mediator steps out of the case, and the parties would then retain attorneys to litigate in a more traditional fashion.
On the other hand, if mediation works and all issues are resolved, then a settlement agreement is drafted. The divorce parties can decide to have the settlement agreement reviewed by an attorney of each party’s choosing, or the mediator can pre-package everything and draft pleadings for each party to appear In Pro Per (without attorneys). The parties then go through the system-the mediator still monitoring them- without the need for attorneys and at no additional expense, other than the normal divorce filing fees.
I have found that this is an effective means of resolving a divorce where people are trying to handle things in a very simple and amicable, cost-effective fashion. In this economy, this is a way to get divorced while minimizing the legal cost, the emotional cost, along with the time spent in the legal system, with court appearances being kept to a minimum.
The definition of the word “divorce” is the dissolution of legal matrimony between two people. In child custody, the decision requires a judge and also the splitting of the couple’s estates. Divorce is looked at and performed in different ways across the world.
A no fault divorce is when the law does not require the couple to provide proof of fault, instead one can cite incompatibility, irreconcilable differences or irremediable breakdown of the marriage.
An at fault divorce is where the party filing for termination of marriage provides proof that the other party committed an act incompatible to marriage.
A collaborative decision is one in which lawyers and financial advisers help the person to make an independent decision. But, attorneys are not permitted to go into the courtroom while the process is going on.
If the divorce is uncontested then the couple will come to an agreement on dividing property and child visitation before they come before the court authorities.
Mediated divorce is where the whole process is pegged on a mediator who provides a means of communication between the husband and wife and also provides suggestions to resolve the differences. Once the parties getting divorced come to a mutual agreement with their mediator, they provide their terms to the court officials.
It is wise to identify your joint assets, sometimes called community property, regardless of which sort of divorce you opt for. These are all the possessions acquire by the couple all through their time in matrimony. Assets may be a house or a car while debts will be any type of loan, including a mortgage.
For those contemplating divorce, it’s good if you try and follow some of these tips during the process. Do not always to expect the judge to deliver a judgment in your favor and always address the judge with respect.
Try to leave any hostility you may have towards your spouse out of the courtroom. This will help you keep your focus throughout the entire process. Also, take notes, as your attorney may be too busy to write everything down. Supply the courtroom with the necessary papers. Expect to stay in the courtroom for awhile. Processing takes time. If possible, try to settle as much as possible out of court, this makes it possible for you to be in control to some degree.
We recently had a question about whether a judge could order a couple who had not lived together for over a year to do so before granting a divorce. Under no circumstances can a judge order them to live together for any amount of time. The closest thing to what you say is that a judge can refuse to grant the divorce if he believes there is a a possibility of reconciliation. The Divorce Act says:
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(2) Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court shall
(a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and
(b) with the consent of the spouses or in the discretion of the court, nominate
(i) a person with experience or training in marriage counselling or guidance, or
(ii) in special circumstances, some other suitable person,
to assist the spouses to achieve a reconciliation.
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In actual practice the only evidence on this issue that the judge will have in an uncontested divorce will come from the affidavit(s) of the applicant(s) which will just state that there is no possibility of reconciliation and the judge will accept that.
Under section 9 of the Divorce Act a lawyer has the duty to discuss the issue of reconciliation with his/her client and inform him/her about “marriage counselling or guidance facilities” and “mediation facilities” for assisting in negotiating terms of divorce.
There are really only three categories of “things” which are divided up in divorce cases. These are property, income, and children. The only other “thing” that comes close to having special rules for the way they are divided would be pets. However, while they may “come close,” really they still fall under the category of property and are dealt with in that way by the courts.
With children the courts consider their best interests to be the most important factor in determining custody, access, and child support issues. However, as property pets are divided more or less along the same lines as TVs and toasters. Basically, you make a list of the property, assign rather arbitrary values to each item – the amount you would get for the item in a yard sale or flea market – and then make a list of equally valuable items for each spouse. Cash is paid by one to the other to balance the value of the lists where necessary.
That is where the hard part comes in, how do you place a value on a pet? A court in the US had to decide who got to keep the dog a husband bought for his alcoholic wife to help her stay sober. It worked and by the time they divorced she had been sober for seven years. The husband argued that he should get the dog since he bought it. However, the court decided to give it to the wife because of the part played in her successful rehabilitation.
Some point to this as an example of the court moving toward a consideration of the best interests of the pet. However, it appears to me that this is clearly an example of the court assigning the property to the spouse who placed the greater value in it. This is a long-established practice often applied to family pictures, heirlooms, etc.
Typically, judges are not inclined to pay much attention to the proper assignment of family pets. They may spend several days hearing testimony from experts and others before deciding where to place children but just a few moments to make a similar decision about pets. However, there are many pet owners who think of the pets in the same way others think of the children. A survey has found that 93% of pet owners say they would risk their lives for their pets and 83% of dog owners refer to themselves as the dog’s “mommy” or “daddy.”
If you feel this way toward your pet the last thing in the world you want is to leave the decision about what happens to the pet up to a judge. Here is another plug for mediation. A mediator can help you come to an agreement on the future ownership of your pet or, at least agree to leave the decision up to someone likely to put a lot more thought into deciding the matter than a judge. Do not think that a judge will agree to a court order with specific direction about joint custody, access and/or specific care instructions for an animal. However, these kinds of things can easily be built into a separation agreement.
This is another instance of how the do it yourself legal process involving mediation and separation agreements is superior to courtroom litigation.
This might sound strange coming from a service which helps people filed their own divorce papers rather than using a lawyer, but lawyers are indispensable. To that extent we agree with some of the concerns expressed by Amelia Hill in DIY divorces surge in wake of Mills case. Ms. Hill reports that many divorce lawyers believe that more people going through a divorce will now choose to represent themselves based on the example set by Heather Mills in representing herself in divorcing Paul McCartney. This is what is referred to as a DIY or do it yourself divorce.
The main concern, and the reason why lawyers are so indispensable, is that many self represented parties to a divorce do not understand their legal rights and responsibilities. This leads to either giving up more than they should do their spouse or demanding that to which they have no right, thus making the process more bitter and protracted then necessary.
However, this does not mean that you need to engage a lawyer in the traditional way – letting the lawyer handled the case as he or she sees fit from beginning to end. Instead, lawyers should be seen as important professionals who should be consulted as and when necessary. Once you have a good appreciation for your legal rights and responsibilities we highly recommend using the services of a mediator to assist you and your spouse in coming to a mutually acceptable agreement on the terms of your divorce.
The use of mediation to resolve their dispute can save you tens of thousands of dollars compared to letting a judge makes the final decision. During the course of the mediation, and certainly prior to finalizing your agreement, you should consult with your lawyer to make sure that you are fully aware of the legal consequences of what you have agreed to and only sign the final agreement if you are still satisfied that it is in your best interests.
Using both lawyers and mediators, each working for you within the specific area of their own expertise, is the most efficient and cost effective way to ensure that the terms of your divorce are in your best interests. Then, once you and your spouse have agreed upon terms, you can enjoy further savings by employing our service to prepare your Canadian divorce documents for you.
