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.

Steine v. Steine stands for "incomplete agreements"

A recent decision, Steine v. Steine, decided by Superior Court Justice Gregory Mulligan, stresses some of the pitfalls of "settling a case on the courtroom steps". In this particular case, the litigants and their lawyers attended a case conference (a meeting with a judge before a formal court appearance) to discuss the merits of their respective positions. The lawyers and clients negotiated for 6.5 hours and managed to settle all issues in the case. Minutes were drafted up but because a photocopier was not available in the courthouse at that time, one lawyer promised to provide a copy of the minutes to the other lawyer. Unfortunately, this never happened and slowly, the deal reached began to unravel. One of the problems in this case was that the lawyers had not fully teased out all of the specific terms of the negotiation when the minutes were drafted -- probably because it was late in the day and everyone had been negotiating for 6.5 hours. As a result, when it came time to formalize these minutes at a later date, the lawyers could not agree on some very specific terms (that they thought had already been agreed to).

The reason I highlight this case is because it is very typical in court cases for the parties to settle their case on the courtroom steps. However, these agreements are often rushed through, not comprehensive, and not forward thinking. The parties don't have an opportunity to "try on a pair of shoes and walk around in them". They need to make a final decision immediately. And, then, they are sometimes not happy with the results because they didn't think through all of the repercussions. So...I must stress that this is a peril of seeking resolution through the court system.

Read the Law Times article here: http://www.lawtimesnews.com/201010047654/Commentary/Family-Law-Steine-case-shows-pitfalls-of-incomplete-agreements

New Book Worth Reading: "Tug of War" by Justice Harvey Brownstone

I wanted to recommend Mr. Justice Harvey Brownstone's new book. It is called "Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court". Yes, the title does say alot about the book. I'm recommending this book for two reasons: a) because it talks about some of the horrors of family court litigation from the perspective of a family court judge who has seen it all; and b) because it provides alot of very useful information about family law in very layman's terms.

Perhaps the most salient paragraph for me from Justice Brownstone's book was the following passage on page 3:

What is the difference between the couples who settle their disputes privately and those couples who require a judge to make decisions? Do the parents in the first group dislike each other any less than those in the second group? Does the first group have access to resources unavailable to the second group? Do the two groups come from separate and distinct socio-economic or cultural groups? Not in my experience. In my opinion, the major difference between couples who resolve their disputes privately and those who turn to a judge has to do with one overriding characteristic: maturity. We who work in family court know that a person's maturity level has nothing to do with economic circumstances, education, culture, race, religion, or sexual orientation. We see rich people and poor people in our courtrooms, and we
see people from all walks of life and from every racial, cultural, ethnic, and religious background, and from every lifestyle and orientation imaginable. Trust me: judges see it all. What we don't see very often in our clientele is maturity.

Justice Brownstone's book is available through http://www.ecwpress.com/