What can actually happen when you go to court for a divorce: a cautionary tale

There’s a reason that I practice Collaborative Divorce. In fact, there are many. Along with things like my own personal and professional well-being, I truly believe that keeping a family out of court and retaining control over their future is almost always in their best interest. That being said, a lot of separating couples believe that they need to go to court in order to get what is “fair” or even “legal”. What they often don’t know is what traditional litigation (involving the courts) usually looks like. Of course, every case is different, but my familiarity with the system has shown me that there are some recurring experiences.

In order to help provide clarity, let’s use a hypothetical family and their situation.

Jeff and Sarah are in their late 40s. They have three children, one in middle school and two in high school, so post-secondary education is on their minds. Jeff and Sarah also own a successful business together and have both a home in the city as well as a beautiful cottage up north. They have decided to get a divorce, but neither one wants to sell the business. Because of this, their finances are very connected. While they don’t wish to remain married, they would both still like to be highly involved in their children’s lives. Each one is scared that the divorce will affect their future retirement, but, more importantly, that they won’t get to see their kids as often as they would like to. They decide to divorce via litigation (court).

A Typical Court Divorce Process

Because Jeff and Sarah have decided to go to court, this might be how their process goes:

1. Sarah’s lawyer files an Application, asking for everything she could possibly want, even things they know she won’t get. Even from the start, it’s winner takes all, so the tone is aggressive and combative.
   
2. The Application is served (just like in the movies) to Jeff with a lawyer’s letter written in very formal language, often including threats about responding or else it may harm their care.
   
3. Jeff has 30 days to file a response and will likely go into battle mode immediately, wanting to respond to all of the allegations made against him and make some of his own.
   
   The above two events, alone, will involve many billable hours for lawyers and support staff.
   
   
4. Many months later, they might get to go to a case conference where a judge will try to help them settle the issues.
   
5. If they don’t settle, they will schedule a trial, which may take years to happen. In the meantime, there may be all kinds of motions about how to decide on issues like where the kids will live, who gets to stay in the house/use the cottage, or any other issues that come up around parenting or finances. Each motion will likely cost five figures and take months to happen. Also, the family is entirely in limbo, waiting for a permanent resolution.
   
6. Eventually, a trial will take place where a judge will order what is to happen with the kids, properties, business, and support. Neither party will have had a hand in deciding their fate, and whoever loses will have to pay their lawyer’s costs and probably some of the costs of the other person’s lawyer. The bills can be in the hundreds of thousands of dollars.

Had they chosen a Collaborative Divorce, their timeline would likely be months instead of years and would cost significantly less.

What happens to joint businesses and properties in a divorce?

In trying to decide how to value and divide the business, Jeff and Sarah will probably hire competing financial experts to make their case. A judge will decide which expert they prefer and then decide the value of the business and how the company will be divided. The process can be so expensive, time-consuming, and divisive that the business is either forced to be sold or goes out of business entirely because the parties cannot work together to run it properly.

They will both need to dip into their retirement savings or investments to fund litigation, meaning they have to work longer and because their business was a part of their retirement, they will need to start their retirement plan almost from scratch.

Collaborative difference: The couple would have a joint financial expert to assist with untangling their finances and coming up with a solution for the business. We would take each person’s goals into account and try to come up with a creative solution for how to keep the business running. Since we’d be dealing with interests and not sending nasty letters or fighting, there’s a much better chance that Jeff and Sarah could preserve some sort of working relationship or at least keep the business going so they can both rely on it for their retirement.

Because the real estate market is so hot, both of Jeff and Sarah’s properties will be sold and the proceeds divided. A court only has the ability to force a sale of a property — it can’t determine the value for one person to buy the other one out. If they wanted to each keep a property and buy the other’s share, they would need to settle that first.

Collaborative difference: We’d discuss a mutually acceptable solution for how to divide the properties based on the things that are important to the couple. For example, perhaps Jeff has more of an emotional connection to the cottage or Sarah wants to keep the kids in the house until they are done with high school. We can come up with all kinds of creative solutions like how to structure a buyout; how to continue to jointly own both properties and/or share the equity from a future sale; or how to structure support to make it possible to keep one or both properties. A court can’t decide these things as a package – it can only decide each matter based on the law.

What happens to the kids after the divorce?

This is the part that is especially difficult. Unless Jeff and Sarah agree about parenting time (access) and decision-making (custody), the judge will need to decide both of these things. Because the law is all about the best interests of the children (which is noble but can also be a grey area), both sides will try to show the judge that they deserve more access and custody which almost always involves airing dirty laundry to try to make the other parent look bad. Because “best interests” is so ambiguous, there are often even more points to argue over, which costs more time, money, and mental stress.

Collaborative difference: A neutral family professional helps everybody understand their goals for the kids and for themselves as parents, as well as the constraints of each other’s lives, and helps them come up with a plan that works for both their schedules and for the kids. The neutral can also work with the kids to help them process what is happening, the changes that are coming, and to understand what the kids actually want so the parents can take it into account. Most importantly, the family decides: not a stranger.

Obviously, I believe that “Jeff and Sarah” would have been better off choosing a Collaborative Divorce. Many couples don’t realize that there’s more than one path to a satisfactory and legal divorce and choose litigation as a default. I sincerely hope that this default will change as more and more divorcing couples are informed about Collaborative Divorce and more family, legal, and financial professional begin practicing in this area.

Ryan Osbourne is a settlement-focused lawyer licensed by the Law Society of Ontario. He believes in the value of good working relationships and has found that honesty, empathy, and a team approach works. His hope is that this will make dealing with a lawyer much less stressful, expensive, and time-consuming for his clients. He believes in finding a win-win solution that works for everybody.