Family Law: Negotiation

Before exploring the concept of negotiation itself within family law, it is important to first understand some of the fundamental but perhaps overlooked benefits of arriving at a resolution to a family law dispute outside of the Court process. As was mentioned in the previous article, there are situations where spouses simply cannot resolve the family law issues between them, or perhaps there is a genuine question of law that only the Courts can decide. However, in many cases there can be real and tangible benefits to proceeding via an alternative to Court. For example:

• When a Court makes an Order, there may be one spouse that feels unsatisfied with the Order. Sometimes both spouses are not content with the terms of the Order. When the Court process is utilized, the parties (and/or their lawyers) will try to convince the Judge of the merit of their respective positions, however the final decision is ultimately made by an independent individual. This decision is binding on the parties. The various alternatives to Court allow the parties far more control and input into the process of trying to resolve the matter.
• A resolution, negotiated between the parties, which is made up of compromises between spouses and which contains features that are important to both spouses, will often be something that the parties will want to respect and be more committed to.
• The Court process is lengthy and time consuming. While the Courts have built-in wait periods (i.e. the time one party has to respond to the Court documents of the other party) and the Courts are sometimes backlogged, the alternatives to Court can often proceed at a swifter pace. Two spouses negotiating in good faith towards the common goal of a reasonable agreement can often resolve their matter quickly and amicably.
• Finally, there is the issue of costs and legal fees. The Court process can be a very expensive proposition for most families. Parties should consider, amongst other things, expenses for Court filing fees, process server fees, legal fees for preparation and attendance at numerous lengthy Court appearances. Furthermore, if a party is unsuccessful in Court, they may end up being required to pay the other party’s legal costs. On the other hand, if parties can arrive at a resolution using an alternative to Court, they will often be able to do so at a lower cost.

The first alternative option to consider is attempting to negotiate with the other party to attempt to resolve your matter. Negotiation can be between you and your spouse, or can occur between your family lawyer and your spouse’s family lawyer. This is something to discuss with your family lawyer to determine, based on your specific circumstances, which approach makes the most sense in your matter. If you are going to engage in settlement discussions on your own with your spouse directly, the following are some important points to keep in mind:

• You should always gather information and be aware of all the pertinent facts before making any decisions. Decisions should not be made on a whim, and it is wise to take some time to consider any decision before agreeing on any issue with your spouse. You should consult with your family lawyer to obtain information about the law as it relates to your matter, and to learn about your rights and obligations with respect to your spouse before you engage in detailed discussions and negotiations with him or her.
• You should speak to your family lawyer after discussions with your spouse to determine the legal and practical implications of your options. Your family lawyer may be able to point out important issues you may have overlooked or legal implications you may not be aware of.
• It is important to make your spouse understand that you are engaging in tentative discussions with them in order to canvass the issues and obtain a better understanding of his or her goals and desires. It is imperative that your spouse clearly understand that you are not making any commitments or agreeing to any specific terms without first taking time to fully consider and contemplate what you have discussed. This is especially important as, even if you have not signed any agreement with your spouse, when you discuss concrete numbers and concrete terms of settlement with your spouse before speaking to your family lawyer, you may set an expectation. Once this expectation is set, it may be much more difficult to go back to your spouse and retract or alter those terms. Accordingly, it is always important to be cognizant of setting these expectations and ensuring that your family lawyer provides you with advice on an issue before these expectations are set.
• You should always be careful when it comes to discussing and settling one specific issue out of all the aspects of a case, especially if the issue is one that is important to your spouse or is a compromise on your part. It is often advisable to attempt to reach a resolution on all of the issues in a case at the same time in one comprehensive agreement. If you approach a matter on a piecemeal basis, and you acquiesce to your spouse's position on one individual issue, you may lose the ability to leverage that issue in order to obtain a preferred result on another issue that is important to you.

Negotiation can occur at any time in your case. It can commence immediately following the separation of the parties, or it can be utilized even after one party has initiated a Court Application.

The resolution of a matter can be documented in several ways, including, but not limited to, Separation Agreements, Consent Orders, and Minutes of Settlement.

Often, when a matter is resolved through negotiation (before or during the Court process), the family lawyer for one of the parties will draft a comprehensive Separation Agreement. This Agreement is a contract between the parties outlining their various rights and obligations with respect to the other. The draft Separation Agreement would then be forwarded to the family lawyer for the other party, who would review the contract with his or her client and would then make any recommendations, additions, or amendments.

There are many terms that should go into any Separation Agreement, and every family lawyer has a different approach to the drafting and amending of such Agreements. However, there are two characteristics that all Separation Agreements should have:

• Comprehensive financial disclosure: Both parties should provide the other with complete and comprehensive disclosure of their financial circumstances. One of the most effective ways for one party to attack a Separation Agreement is where there was incomplete or no financial disclosure.
• Independent legal advice: Each party should have the opportunity to discuss the terms of the Separation Agreement with their own family lawyer who can answer their questions, explain the terms of the Agreement, and clarify any misunderstandings. A lack of independent legal advice is another effective way to attack a Separation Agreement.