Getting to the Table
When you and your spouse have made a decision to separate, it’s important that you make an Agreement as to the terms of your separation. For example, how will your assets be divided and who will be responsible for paying off debt? Where will your children reside and who will make decisions for them? Who will live in the house or will it be sold? etc.
You can make these arrangements in three ways:
1) Kitchen Table Agreement:
You and your spouse would make decisions together;
You and your spouse would make decisions together, with the assistance of a Mediator trained in family law; or
3) Court and Lawyers:
You and your spouse would each hire a lawyer and let a judge make the decisions for you.
Although a “Kitchen Table Agreement” is the best way to decide on what works best for you and your family, this should only be the framework of your Agreement. As most people find it difficult to navigate through the required legal documents and divorce laws, it is important to talk to a professional to make sure the terms of your Agreement will be upheld in court, if challenged, at a later date.
For example, we have seen many self-made Agreements in which the parties agree to waive child support. However, child support is the right of the child and a parent/parents cannot waive their right to this. If the Agreement was challenged in court, a large arrears payment may be ordered.
Mediation, however, is a great alternative to help you to discuss the terms of your separation.
Divorce Mediators are trained in family law issues and can help you make decisions that will protect you in the future. It may seem easier to let a lawyer handle the negotiations through a legal battle and let a judge make your decisions for you, however, going through lawyers and the court system will actually be more stressful, will certainly increase your conflict, will be far more expensive, and will take much, much longer than going through mediation.
Litigation is ideal for extremely high conflict couples, parties with a history of domestic violence or parties that are hiding assets. It is by far the most stressful, expensive and time-consuming option of the three. Because each issue often leads to more conflict, litigation typically last for years because of ongoing arguments between parties. As the conflict drags on, the lawyers continuously bill for their services. Parties who litigate almost always find themselves back in court months after an order has been made by a judge, since the order usually does not work for the couple, or their family. The conflict continues.
It is important to note that mediators do not take sides. They do not represent either party or provide financial or legal advice. Their role is to help you and your former partner reach agreement. Mediation is a process which can assist you to:
Make your own decisions
Reduce the financial and emotional costs of legal proceedings
Improve your working relationship as parents
Improve your communication with your former partner
Resolve future disputes
If your spouse is reluctant to mediate, it may be helpful to be prepared to answer objections that may be expressed. Print off this document, share it with your spouse and invite them to call us if they have any questions.
Information on this website may contain legal information but is not to be interpreted as legal advice. It is strongly recommended that you obtain Independent Legal Advice (ILA) before signing any documentation arising out of the end of your marriage or common law relationship.