Myth: Collaborative Family Law Doesn’t Promote My Rights

“I’ve heard that collaborative family law doesn’t promote my family law rights – is that true?”

NO! That could not be further from the truth. In fact, the collaborative process can often do a better job at looking at, and protecting, your rights than courts can. This is especially true when it comes to the financial issues that arise from separation and divorce.

How does collaborative law protect my rights if we don’t go to court?

First, there are lawyers involved and their job is to know what your rights are and protect you (and your family). Because the process is collaborative, clients have the opportunity to understand these rights and then are a part of each decision, rather than have the courts decide for them. It’s really only by knowing what each person’s rights are at law that they can then decide whether the settlement is right for them. Without knowing what you might get under the legal model, how can you decide whether what’s being proposed is a good deal?

Start with the Legal Model

In collaborative, we always start with the legal model. That means we look at the issues from the perspective of how the law (or a court) would deal with things. Once we know what the legal model looks like, then we can start to work creatively to see what settlement is right for each family.

Include a Certified Financial Divorce Specialist

The benefit of the collaborative model is that a Certified Financial Divorce Specialist (CFDS) is part of the team. Can you even imagine it any other way? Money can be such a core point of conflict in a divorce, so having a financial neutral to help provide clarity is invaluable.

The CFDS is able to get into the ‘weeds’ of the financial issues in ways that lawyers aren’t trained for. The CFDS is a neutral, which means that they are jointly retained by the separating couple and don’t ‘work’ for only one person. They look at the financial situation from a completely objective view.

The role of the CFDS

In a collaborative matter, the role of the CFDS is to gather all the disclosure from each person. They are trained to know what information or documents to ask for, why they are asking for them, and how that information is to be used.

CFDSs have knowledge of tax rates, benefits, and various other financial details that are often overlooked by lawyers and courts. They drill down, resulting in a more detailed and accurate financial picture.

Once they have all of this information, financial neutrals then present it to the rest of the team and from there, the lawyers can discuss each party’s legal rights and everyone can discuss what is actually right for them.

How this looks in the traditional litigation model

Outside of the collaborative process, in traditional litigation, lawyers do the gathering and reviewing of their own client’s finances. Each person’s lawyer then reviews the documents provided to them by the other lawyer. Lawyers prepare their own support calculations and then make the legal arguments. In court, judges review what is presented to them. They more often use estimates or approximations for property and support values than a collaborative team would and the law does its best to determine each party’s legal rights.

It does nothing to determine what is right for a particular family.

Creative Solutions that Promote ‘Rights’

People are attached to their ‘rights’. Some are disappointed to learn that the law doesn’t always agree with their definition of what is right. A couple of examples might be useful here:

Example #1

Meg and Trevor are married and own their home. Meg received an inheritance of $250,000 from her great-aunt. Meg used the money to pay down the mortgage on the home she and Trevor share.

Meg and Trevor have now separated. Meg wants to stay in the house which is valued at $1M and is mortgage-free. She wants to buy out Trevor’s interest in the house.

Meg and Trevor each go off to their own lawyers. They each learn that at law Meg would have to pay Trevor half the value of the house – $500,000.

But what about the $250,000 that Meg alone contributed to the mortgage from her inheritance? “Too bad!” say the non-collaborative lawyers. If she had wanted to protect that money, she should have put it into an account in her own name. Alternatively, if she had wanted to pay down the mortgage, she and Trevor should have signed an agreement that provided for the protection of that money in case they ever separated.

The collaborative team agrees that at law, Trevor has a right to $500,000 from the house. The collaborative team may also agree that it’s only fair (or right) for Meg to get a discount on the amount she has to pay Trevor given that she used inheritance funds to pay down the mortgage.

Example #2:

Fred and Wilma own a house. They decide to downsize after their kids go off to university. They sell the house for a great price. They buy a lovely condo at a considerably lower price. They are left with sale proceeds.

The sale proceeds go into an account in Fred’s name. A few months later, Fred uses some of the sale proceeds to buy shares in a new company that has recently started trading on the stock market. The stock price has been increasing ever since.

Three months later, on January 1, Wilma asks for a divorce.

In the non-collaborative setting, Wilma is surprised to find out that Fred will have to include the January 1 value of the shares he holds as part of his net family property, but that Wilma will not get the benefit of the increase in the share price since January 1.

“But it was the money from our jointly-owned home that Fred used to buy those shares!” Wilma says. “Too bad!” say the non-collaborative lawyers, “You have no right to the shares themselves; only to their value on the date of separation and not afterwards.” Wilma could make a claim in trust for the shares, but that is more complicated.

In the collaborative setting, there could be a recognition that since those shares were clearly purchased using funds from the sale of the jointly-owned home, it would only be right for Fred to transfer half of the shares to Wilma. She would then hold those shares and could decide whether to cash-out, continue to ride the wave, or do anything else she wants with them.

The collaborative model takes parties’ legal rights very seriously. It also, however, allows the parties to determine what is right for them. In both of those examples, the clients and their lawyers would have these discussions with transparency and cooperation, instead of acting as if they are on opposing sides trying to win. Because, as it turns out, legal rights don’t always feel right.

Lisa Eisen
Authenticity, connection, and fairness are Lisa’s core values. She partners with her clients – bringing her knowledge and experience of the process and the law while they bring their unique lives, values, and goals. Together, they work to find creative solutions. Called to the Ontario Bar in 1995, Lisa has taught negotiation and mediation skills to both lawyers and non-lawyers and practices exclusively in family law. She strives to empower her clients with information, support, and guidance.