Separating? Three Options to Consider Before You “Lawyer Up”

It’s a common scenario: a couple’s relationship is over and they agree to take formal steps to separate. They want to keep things amicable, keep costs down and, most of all, keep things out of court. Their emotions may be high, but their intentions are good.

Unfortunately, the next step that many couples take – each going to a traditional family law lawyer – is often the wrong one. Getting a good lawyer is an important part of the separation process. But it is not necessarily the first part. If there are not urgent child, financial or safety related issues in your separation, consider these three options before you “lawyer up”.

Early Neutral Consultation – this is a new process being pioneered in Ontario. A consultant (often a legal, financial or mental health professional) meets with both parties, together or individually. The consultant helps the parties to understand the information, processes and types of professionals needed to help them resolve their separation.

A separated spouse often comes into my office for a first consultation either overloaded with information – from friends, the internet, or even their spouse – or with no information at all. In both cases, the client is usually overwhelmed and doesn’t know how to move forward.  The big selling point of Early Neutral Consultation is that it empowers couples with good information first. The couple hears the same thing, from the same professional, at the same time. In this way, they approach the next steps in their separation with equal understanding and, hopefully, similar goals.

More information on Early Neutral Consultation can be found here.

Mediation – a mediator helps couples understand, discuss and ultimately agree on their separation issues. The mediator is often, but not necessarily, an experienced lawyer. However, the mediator does not offer legal advice to the parties and cannot impose a settlement on them. At the end of a successful mediation, the mediator prepares a “memorandum of understanding” between the parties that is then turned into a formal separation agreement by their lawyers.

A key benefit of mediation is that, by the time lawyers begin drafting, the parties have reached an agreement in principle. This reduces the possibility of misinformation, misunderstanding and conflict creeping into the system.

There are many varieties of mediation (a good synopsis of them is available here). If you and your ex have agreed to investigate this option, start by talking to a mediator about the option that would be best for you.

Collaborative Family Practice –   There are lawyers and then there are Collaborative Lawyers. If you and your ex want to see separate legal counsel immediately, consider have each of you see a lawyer who is trained in Collaborative Family Practice (also known as Collaborative Family Law).

Under the collaborative approach, the couple makes a signed commitment to negotiate a separation agreement without going to court. The couple retains a team of divorce professionals to them reach agreement. The team may be limited to each party’s collaboratively trained lawyer. But it may also include jointly retained financial and mental/emotional health professionals, depending on the parties’ needs.

Under the collaborative approach, the lawyers and other team members help the clients negotiate a legally-binding separation agreement from options developed by the parties themselves.  Bargaining takes place in a way that respects legal rights but also focuses on preserving emotional, family and financial health.

A key point for the collaborative lawyers is that they if the collaborative process fails, they cannotrepresent the parties in the court.  In other words, if your collaborative lawyer doesn’t help you, they lose you. This incentive keeps the lawyers focused on deal-making instead of fighting.

Read more about Collaborative Family Practice here.

Moving Forward Together

Separating couples often “just want to be done” with each other. Done arguing, done talking, just done. It is tempting to hire a traditional lawyer who will “see it your way” and “fight for you” as aggressively as possible.

But the ironic outcome of this approach is that it frequently chains couples together in an adversarial, out-of-control process that is exhausting, high conflict and financially destructive.

So before you “lawyer up”, take a deep breath and consider your options. If you and your ex can agree to one of the approaches talked about in this article, you both have a better chance of “being done” in a quicker, healthier and cheaper way than you might think.

Jason Murphy practices family, civil and estates litigation at the law firm of Christie/Cummings in Collingwood. Please note that this article is only an overview and is not legal advice. Consult a lawyer before taking any action.