The first choice you make when beginning a divorce: which door will you choose?
Let’s make a deal!
Separating spouses start with a choice between two doors:
Door Number One: Agree to Disagree
Behind door number one is a courtroom and if you can afford it, a litigation lawyer. Lawyers and judges follow the rules of the court in determining what you are allowed to present (evidence); how you are allowed to present it (better keep your Affidavits under the page limit); where you may present it (at a courthouse with expensive parking); and when you may present it (maybe you’ll get a trial date in two years?!).
Your busy schedule and childcare responsibilities, fear of public speaking, physical safety concerns, ability to afford legal help, and your interest and goals are irrelevant. Facts, numbers, and the law are all a court can deal with. Nobody – including lawyers and judges – has much choice over the process at all. Only a judge may decide what happens to you and your spouse.
You could also agree to arbitrate but an arbitrator is like a private judge, bound to follow the rules of the process – but they charge an hourly rate.
Door Number Two: Agree to Agree (or at least try)
If door number one sounds as horrible to you as I wrote it to sound, then your only other option is to negotiate a solution to your family law problem. There are a few ways to do this, but I’d typically suggest Collaborative Practice. This an out-of-court legal method where each person gets their own lawyer, but there are also neutral professionals (financial and family) all working together to come up with resolutions that work for everyone.
How to stay in control of your divorce
If you have selected door number 2, you’ll have a few more doors to choose from in terms of how you negotiate your agreement. Choices and retaining control are big parts of a Collaborative Divorce.
You’ll get to assemble a team to suit your needs; meeting at the outset to discuss important dates and deadlines to work towards. You’ll agree to treat each other and the professionals a certain way as well as address domestic violence concerns, if needed, so your team can design a safe process.
A Collaborative Team is trained to handle the human element of this legal process. That means we can manage expectations and not freak out when things go a little bit off the rails. It also means we can keep our egos from getting in the way of calling the other side to have a chat about how to right the ship.
Creative solutions during divorce negotiations
During the Collaborative Process, you’ll be able to unlock additional value by identifying opportunities for trade-offs and joint gains. As Collaborative Lawyers, for example, before we start discussions about options for settlement, we focus on what matters to each of you. We ask about your goals, priorities, and interests. When both sides understand what truly matters, we can generate more creative options than just following what a court would do. For example, instead of selling everything and splitting the proceeds, like a court may order – we may learn that a certain piece of property is more meaningful to one person and structure a deal which allows that person to keep the property and for the other person to get something that they really want and care about.
Typically, when a separating couple chooses a Collaborative Divorce, the control they have directly impacts how they feel about the final result. The equation usually goes something like this: More control equals more buy-in from both parties which equals a better chance of success and equals a faster, cheaper, more satisfying separation agreement.
At the end of the day, if you can’t figure something out behind Door Number 2, then you can always back out and head into Door Number 1 (but it’s a whole lot harder to start a conversation after heading off to court).
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.