Most people think they have to get a good lawyer and fight for their rights. Some even go as far as to believe that the more they fight, the better the outcome. Sadly, this is not always true. It is typically just the opposite. If you are separating, step one should be understanding your process options.
People often get jaded by the ‘as seen on TV’ divorces. They are high conflict, and they are more interesting to watch than a couple who sit down with their lawyers at the same table and talk it out. But if it’s your process choice, wouldn’t you want to experience the latter rather than the former method of hammering out your separation agreement? Maybe. Maybe not. But some people feel that it has to be this way, because that is the ony separating process that they have seeen – on TV.
The family law system is faulty in that if you go to see a family law lawyer, you will usually get engaged in their system of process resolution. Not all family law lawyers practice all types of process options. In other words, if you see a litigator, your separation experience will differ than if you walk in the door of a Collaborative lawyer. What needs to happen is that lawyers should be explaining process options to couples to allow their clients to make informed decisions as to which process is best for their family. Step one. As a mediator and financial divorce specialist, I believe that if your family experiences the wrong process option, it can do irreversible harm to your family. In my mediation room, I would not recommend mediation to a couple who might be better suited to the Collaborative process or a more traditional style of negotiation for exactly that reason.
So, let’s explore some process options.
Mediation is a process by which couples come together with a mediator to discuss their Parenting Plans and their financial settlement. As a mediator, I am a translator between what the spouses want and what their lawyers want to see in their agreement, from a legal perspective. People often come to mediation because it is less expensive, it tends to be much faster, and it also creates less conflict in the family. Some people erroneously believe that choosing mediation means negating lawyers and legal fees. However, lawyers can be used throughout the mediation as clients feel the need to engage with them as mediators can provide legal information but not leagal advice. It’s really important that a mediator remain unbiased and impartial. Afterall, the mediator does not have a vested interest in your outcome. If there is a perception of being unbiased, the mediation has a large risk of failing. Mediators provide guidance but the decision making in the room is always done by the clients. And at the end of the mediation process, clients still have to take their mediated agreement and get some legal advice around what they agreed to in mediation. Nothing in mediation is legally binding but it does carry a lot of weight. If you agree to something in the mediation room and your lawyer advises you that family law does not support your decision, you can still revisit the issue having made that decision without understanding your legal rights and obligations. The lawyer’s final piece is to write up their mediated decisions into a legal separation agreement.
The Collaborative process allows for two lawyers to sit in a room with their clients to talk about all the same issues. No matter which process method you choose, you still need a Parenting Plan, if you have kids, and negotiate your financial settlement. The significant difference, from mediation, is that you have your lawyers in the room giving you legal advice during the discussion. The lawyers will also give you some legal advice about your situation before everyone steps into the room. That way, you have some broad stroke ideas of what your rights and entitlements are under family law, right from the get-go.
Collaborative lawyers will also bring in financial and family professionals to help with the leg-work. Family professionals are people who have a Master’s in social work or an equivalent designation. These divorce professionals understand the developmental needs of the children based on their age and other influences. They can even help create a Parenting Plan with the understanding of the children’s special needs if that is a concern. They will help the clients negotiate a Parenting Plan, often outside of the scope of sitting with lawyers. This can help to maintain costs for the clients as they are paying a professional, with the expertise, to create a Parenting Plan at the expense of paying one professional.
Financial Divorce Professionals
Financial professionals are either Chartered Financial Divorce Specialists (CFDS) or Certified Divorce Financial Analysts (CDFA). The significant difference in the designation is that the CFDS is required to have a Certified Financial Planner (CFP) designation while a CFDA needs only to have some financial experience. The continuing education component for CFDS’s is much more complicated with 25 credits annually and 10 in the divorce arena while the requirement for CFDA is 15 divorce credits every two years. But, apart from the acknowledgment of the different designations, the financial professional in a Collaborative setting, is responsible for creating your financial disclosure and bringing the financial picture past the family law model. Often clients do not understand what lifestyle they can assume with their’ half.’ The financial professional can also suggest support options to the lawyers to consider for their clients. Perhaps one spouse needs more support upfront because they want to increase or update their professional requirements. The other spouse may wish to agree to this because it allows their spouse to increase their income in future years. It could be that one spouse has been out of the workforce for some time, and they want to start their own business. Helping clients understand their expenses, income sources, and tax consequences is something that could benefit this type of client. Also, the financial person could help them create a business plan to ensure that they understand what is expected from their business growth and contribution to the family income.
Traditional negotiation is the process by which each spouse retains their lawyer. Each lawyer then discusses the outstanding issues with their client and, in turn, discusses with the other client’s lawyer. Considerations are met, and then each lawyer circles back to their clients with information, and they guide clients in choosing which decisions need to be made. As decisions are made, the lawyers proceed to bring up outstanding issues until the separation agreement is ready to be written, and all decisions have been negotiated. Sometimes, these lawyers go to Court to get rulings on decisions that are at a standstill.
What if you can’t get to an agreement? For separating spouses who have exhausted their process, whichever process they may have chosen (or fallen into), there is a resolution that does not include Court. Arbitrators will look at your mediated agreement, your Collaborative agreement or your traditional process agreement, speak to both parties and make a ruling that is in force able, just like a judge. I have to say that most people who choose the mediation or Collaborative process do not typically end in arbitration. Maybe because they are spouses who want to work out their agreement, instead of having a stranger tell them what is their best outcome.
It’s Not Always Black or White
What’s more, is that some processes are not so cookie-cutter. I’ve worked as a financial professional in a mediated case because one spouse didn’t understand their financial position. After spending some time together, they were ready to move into the mediation negotiation, knowing precisely what they needed financially, in the negotiation room. So, the lines can be blurred. Your process should be tailored to your family needs, your family income and your family dynamics.
Early Neutral Consultants
Lastly, Early Neutral Consultants give a one-stop description of the world of family law. We discuss the different process options, what you should consider in choosing which divorce professional you both believe is needed to help your family through transition, as well as considerations for Parenting Plans, valuing assets, asset division and support considerations. These sessions are an hour and a half, and they can help to understand the lay of the land with the focus on your unique family. An appointment with an Early Neutral Consultant usually lasts and hour to an hour and a half. It’s an information session. It’s not meant to be a forum to discuss substantive issues. Early Netural Consultants cannot give clients legal advice.
I cannot stress strongly enough that if your family ends up in the wrong process option, it can create irreversable harm. Litigation and Court can enhance anger and position clients in such a way that co-parenting in a healthy environment for your children becomes difficult. Mediation for a couple where one party is unable to speak for themselves can create huge resentment in the family dynamics. The Collaborative process is sometimes chosen by spouses who feel that they can manipulate the process to get more of what they want. Or the Collaborative process sometimes fails because one spouse isn’t really Collaborative, respectful and transparent which has huge reprecussions.
Step one. Be honest about which process choice is right for your family. If you aren’t sure the best option would be to speak to an Early Neutral Consultant to get an unbiased assessment of which process is likely to be best.