It's about the process you choose

When a client calls me for the first time and explains that they have made the decision to begin the legal process of separation, the question I always ask them is "OK. What kind of process do you want to use to get you to that legal separation?" They are usually dumbfounded because this is not something that they have thought about. They have made the decision to separate but they don't really know how that will be accomplished. I then explain to them that there are a few process choices as to "how" to separate. These process choices are as important as the actual terms of separation. The reason I say this is because the way that a separation is handled sets the tone for any future contact between spouses -- and this can be crucial, especially where they need to communicate with each other because they have children together.

These process choices are:

1. Kitchen table negotiation: A couple creates their own home made separation agreement, signs it and then settles each of their affairs accordingly. no legal professionals are involved;

2. Mediation: A couple meets with an independent third party (preferably someone trained to deal with separation issues) who facilitates the completion of a separation agreement. The couple then take the agreement to each of their lawyers to get independent legal advice before signing;

3. Collaborative Practice: Each party hires their own collaboratively trained lawyer. The collaborative lawyers and the clients work together as a team in a series of four way meetings to negotiate the terms of the separation. (There may be other professionals such as family professionals and financial planners to assist in this process.) The lawyers and the clients are not permitted to threaten or go to court. If there is a breakdown of the process, the parties will need to hire new lawyers to help them to go to court;

4. Traditional Negotiation: Each party hires their own lawyer. In this process, lawyers may advocate for their clients in a traditional fashion (ie. write positional letters, threaten court action) in order to negotiate the terms of the separation agreement;

5. Litigation: A party begins the process by filing a court application seeking the court's assistance to resolve the issues of a separation. The court will issue orders dealing with the issues of separation.

Over the next few blog posts I will be differentiating these process options so that you know which option is best for you.

Happy New Year!

My apologies for not posting to this blog for some time. I wish everyone a prosperous and peaceful 2014!