What style of negotiation is best to work out your divorce?
Recently, a person reached out to me to help him and his wife with their divorce. They have been married for almost 26 years and have been living apart for the past three. After interviewing each of them, they independently said that the marriage was over and that they should go ahead to get a divorce. When I asked each of them why they continue to be in the “separation phase” for the past 3 years, they each had different answers. When I probed deeper into each of their individual reasoning, the man just wanted to get on with living. The woman, too, wanted to get on with living, but had serious “trust” issues with his style, his calculations, and the method that would guide the asset split and how the spousal support would work out for her.
When I contemplated their answers, it seemed to me that they thought that there was only one way to get a divorce; that they both had to “lawyer up” and fight it out. The goal of this blog is to show that there are at least 5 ways to work out a divorce.
Option 1 – Uncontested Divorce:
This may be the easiest and least costly way to wrap up the marriage. This approach, called an uncontested divorce, has the couple work out the details as they see fit. To start an uncontested divorce in British Columbia, several legal documents are needed, including a Statement of Claim for Divorce, a Divorce Judgment and Order, and a Request for Divorce. The necessary forms and procedural steps depend on whether children are involved or not, and the process may be completed either through a sole application or by giving a joint application as a couple. These forms are necessary so that your divorce is legally recognized. Make sure that you do your homework!
According to the Family Law website, over 80% of all divorces in BC are uncontested. The term “uncontested” does not mean that lawyers are not involved. In many cases, either one or the other person sometimes engages a lawyer to help guide them through a “technical” aspect with which they may need help. The danger in engaging one’s own lawyer, is that the other person may feel threatened because they feel that they are getting out negotiated. The other person then gets their own lawyer. When both couples get their respective lawyers, this often triggers the contentious adversarial model resulting in the Contested Divorce.
Option 2: Contested Divorce:
In British Columbia, working out a contested divorce primarily involves mandatory dispute resolution processes outside of the courts, with a trial as the final way if no agreement can be reached. Consulting with a qualified family lawyer is highly recommended, especially if there are complex issues that need to be worked out.
Key Steps to Work Out a Contested Divorce
- Seek Legal Advice: A lawyer specializing in BC family law will explain your rights, obligations, and the legal process, and help you find the best approach. Do not assume that all lawyers are experts in family law. The local lawyer that helps with conveyancing property may be a good person but may have no time nor the aptitude to help with the demands of family law. Also, it may be difficult to find a qualified family lawyer where you live due to geography, and the number of cases lawyers may have on their desk at any given time.
- File and Serve Documents: The process formally begins when one spouse (the claimant) files a Notice of Family Claim (Form F3) in the BC Supreme Court and officially “serves” it to the other spouse (the respondent). The respondent then has a specific time limit to file a Response to Family Claim (Form F4), which makes the divorce a contested case.
- Exchange Financial Information: When couples divorce, each person is legally required to provide full and honest financial disclosure, including all income, assets, debts, and expenses. These forms, either Form 4 or Form 8, ensures that decisions about support and property division are fair and informed. This Exchange of Financial Information is often a sticking point between couples, especially if there are secrets, activities that someone is embarrassed about, or if the one of the people is not organized. In my role as a Financial Neutral, getting correct and prompt statements and reports often results in either one or both using up a lot of time and effort to find their financials.
- Engage in Dispute Resolution (Mandatory): The Divorce Act requires parties to try a family dispute resolution process, if proper, before a trial. Four options include:
- Arbitration: A private arbitrator acts like a judge, listening to both sides and making a legally binding decision.
- Collaborative Law: You and your spouse, each with a lawyer, agree to work cooperatively and not go to court, aiming for an out-of-court agreement. This process usually includes other professionals such as Financial Neutrals, Family Professionals, and Mental Health experts.
- Mediation: A neutral third party (a mediator) helps you and your spouse discuss issues and reach a mutually agreeable settlement.
- Family Justice Counsellors: These government staff provide free help with support and parenting arrangements and can help formalize agreements.
- Attend a Judicial Case Conference (JCC): If there are intractable issues that are unresolved after other methods are exhausted, a JCC may be scheduled. A judge meets informally with the parties and their lawyers to narrow the issues and explore settlement possibilities.
- Interim Orders (If needed): If you need a temporary order for matters like child support, spousal support, or parenting arrangements while the divorce is pending, you can make an application to the court for an interim order.
- Trial: If all settlement efforts fail, the case goes ahead to a trial. A judge will hear evidence from both sides and make a final, binding order on all outstanding issues.
- Finalize the Divorce: Once all issues are resolved (either by agreement or court order), final documents are sent in to court for processing. The court issues a divorce order, which becomes final 31 days later, at which point you can receive your divorce certificate. These final documents can be sent in personally as in uncontested divorce or by legal counsel.
There are Key Considerations
- Timeline: Contested divorces in BC can take anywhere from one to three years, or longer, depending on the complexity of the issues and court scheduling. I have seen five divorces that have taken over 10 years to come to a resolution!
- Cost: Litigation (going to trial) is significantly more expensive and stressful than reaching an agreement through alternative dispute resolution. Remember that court costs are just one part of the equation. The clock is always ticking as it pertains to your lawyer, plus other costs such as photocopying and expert third party witnesses, if necessary, to name just three costs that you will suffer.
- Child’s Best Interests: In all decisions related to children, the court’s paramount consideration is the child’s best interests. Couple’s that engage in the Collaborative process, often can get to a plan that is most sensitive to the children’s best interests because a family expert is usually a part of the negotiation. A court’s decision may not be as sympathetic to the unique needs of each of the children, especially if one of them has a specific need or gift.
- Agreements: You and your spouse can reach a full or partial agreement at any point during the process, which can then be formalized into a consent order, potentially avoiding a trial.
Conclusion: At the beginning of this blog, I shared the story of a couple were were trying to work out how to get their divorce completed. They started out with an uncontested model; he tried to go with an adversarial model but then tried to convince his wife to embrace mediation. When I suggested they embrace the collaboration model, she tentatively agreed to that style because she then knew that she had someone in her corner. They have reached out to a collaborative firm that exists on the west coast of BC and are in line to start the process sometime in the new year.
This blog represents my experiences as a Chartered Financial Divorce Specialist. My specific job as a Financial Neutral, can only be as correct as the information that clients provide me. People who find this information of value, use it as a springboard to go deeper into the area into which they wish to delve. There are many more good lawyers than there are nasty and self-serving lawyers in the divorce and separation industry. My hope is that readers understand that there are choices people can make as to the style of representation one can engage.
Note: I am in favor of marriage! Healthy and happy families are the primary units of a strong and vital society and should be encouraged to thrive by everyone…individuals, families, churches, community groups and all levels of government! Like all noble endeavors, it takes hard work, sweat and tears to make something beautiful and worthwhile. If divorce is the route a couple takes, then make the break clean, quick and efficient… your financial future depends on it!