A New Option For Separating Spouses

December 17, 2010

“Love is a feeling, marriage is a contract, and relationships are hard”
– Lori Gordon

When relationships stop working and that contract needs to be dissolved, there used to be two options – either the parties came to an agreement, which became known as the separation agreement, or everyone went to court. Marriage, however, is unlike any other contract. While there are financial and property considerations, it is the soft, ongoing relationships between people that characterise family break-up.

These relationships include children, extended family, and, especially if there are children, the ongoing relationship between the divorced or separated spouses. Courts do not deal well with those soft relationships, preferring concrete, defined rules and roles that do not suit every family. In fact, they rarely suit any family. In the unhappy compromise of the court system, no one ends up satisfied and the children suffer the most. Going to court can also be financially devastating for individuals and families.

Now there is a third option – Collaborative Family Law . Collaborative Family Law allows the parties to make use of legal advice and other professionals and yet, at the same time, avoid the adversarial, lengthy and expensive litigation system.

Collaborative Family Law began in our neighbour to the south, Minnesota. Stuart Webb, a lawyer from Minneapolis, Minnesota, developed the foundations of the collaborative process in 1990, as an alternative for clients frustrated with the traditional court system. Similarly tired of the inability of the court system to deal with their family law clients’ needs, a group of Minnesota lawyers followed Webb’s lead, and created the foundation of what is now known as Collaborative Family Law. The process has since grown steadily across the United States, Canada, Europe and Australia. In Canada, Collaborative Family Law has been growing steadily the past fifteen years, and has been available in Thunder Bay for the past two years.

Some of the most unique components:

  1. The lawyers are specially trained in assisting the parties find creative, needs based solutions, rather than the ‘rights based’ traditional approach.
  2. Each party has their own lawyer, who participates in the entire collaborative process with their client, advising them as to their rights, but focused on their real needs.
  3. The parties are able to develop creative solutions that work for both of them. This includes solutions that may protect common interests that may merit special consideration.
  4. Should the collaborative process fail, the lawyers for the parties in the collaborative process cannot represent the parties in court. This encourages settlement by substantially lowering the ability of the other party to threaten legal proceedings, and it is prohibitively expensive for a party to take unreasonable positions and fail to reach an agreement.
  5. The parties can retain joint, independent experts to provide information to both parties such as business valuators, financial planners and family professionals. Family professionals come from a variety of fields and work on issues surrounding children, mental health or special needs.
  6. This creative approach is often ideal for handling the frequently tricky custody and access issues that trouble many separating parents.
  7. It is substantially less expensive and is generally faster than going to court.
  8. The parties can tailor a situation to fit unique business or investment situations.

Currently, nineteen lawyers in Thunder Bay have completed the Collaborative Family Law training. Fhara Pottinger has completed the training, and is able and willing to discuss whether this process is right for you.