Once I have separated, do I have to go to court?

August 23rd, 2011 by

There are various paths you can take that do not involve going to court:

1. I recommend retaining a lawyer who practices exclusively in the area of family law. This lawyer will be more proficient with the provincial and federal family laws to negotiate a separation agreement for you in a manner that is both cost and time efficient.

2. Depending on the circumstances of your case, you may also participate in the collaborative law process. Most of the lawyers in the family law department have been trained as collaborative family law lawyers. The collaborative law process involves a written commitment to resolve your family law issues through a series of meetings between lawyers and parties and most importantly, involves a commitment to not go to court.

3. Once you and your partner have each retained separate lawyers and financial disclosure has been exchanged, negotiations regarding support, property, custody, access and other more complicated family law issues can take place.

4. Often negotiations take place through four-way meetings with the parties and their lawyers.

5. If negotiations break down, parties can enter into a mediation/arbitration agreement. This involves signing a contract to participate in mediation with an independent and neutral third party, who is often a senior family law lawyer and proficient in all areas of family law. Mediations can resolve issues in as little as half a day or can be continued over weeks.

6. Should mediation fail, the mediation/arbitration agreement will bind you to then participate in the arbitration process, usually with the mediator who then switches hats and becomes the arbitrator. Arbitrations are conducted the same way a trial is conducted and the award provided by the arbitrator is as binding as an order made by a judge at the conclusion of a trial. The benefit of proceeding by way of mediation/arbitration is that most files are resolved at the mediation stage and those that are not are often resolved much quicker in arbitration than trial.

7. The last way to resolve your family law dispute is through the court system. Before you are entitled to have your case heard at a trial, however, there are a series of steps you must participate in first. These steps include one or more case conferences, settlement conferences and trial management conferences. In addition, motions for temporary orders may be heard throughout the process. Because of the numerous steps involved before a case is heard at a trial, most cases do end up settling before they get to trial.

In summary, there are many alternate dispute resolution mechanisms that are available to you once you separate that do not involve going to court. I encourage you to speak with one of the family law lawyers at Devry Smith Frank to determine which route is best for you and your particular needs.


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