Your decision or your partner’s wish to divorce or separate generates a difficult range of emotional and financial issues. The first question to consider is which process option should be used to resolve your dispute?
Each option will ultimately lead to the same result of a formal agreement between you and your former partner, so why is this important?
It matters because the process option chosen will directly impact on the financial cost, length of time and how emotionally draining
the process between separation and final agreement will be.
The first option is to sit down at home and work through it together. While this can result in a very quick resolution if you both agree on a division of assets, parenting and child support matters, rarely does it actually work out this way.
Disagreement will often occur over specific issues and leave you at an impasse, or uncertain about both the process and your next steps.
If you are fortunate enough to reach an agreement, it’s important that you have that agreement formalised (by a lawyer) to bring
certainty to the terms. Overall, while this option seems desirable due to its minimal cost, few couples ever find immediate resolution
regarding asset division, parenting arrangements or child support payments.
Your second option is to negotiate through lawyers via letters. This option allows both of you to put forward your views after the benefit of receiving legal advice, and also allows communication to be exchanged “at arm’s length”, removing the emotion from the discussions.
Once again, upon an agreement being reached, a lawyer will formalise the agreement using the appropriate legal documentation.
Your third option after separation or divorce is mediation. Mediation has a high success rate and generally can lead to an agreement being reached and formalised during, or soon after, the mediation takes place. A professional Mediator will conduct your mediation and facilitate negotiations, to find a suitable solution for both of you.
If you are both ready to resolve your situation and come with the attitude of working together then this may suit you.
Some clients will find this approach stressful, as they will be expected to make quick decisions. Because of this, it is usually best
to seek legal advice before attending a mediation. You may also benefit from having a lawyer with you during the mediation process,
although this isn’t always required.
Collaborative practice is your fourth option to reach a settlement following separation or divorce. This option has an extremely high success rate but is not suitable for every couple and/or family. The focus here is on a win/win set of outcomes, ideal for clients who are not interested in litigation (going to Court).
You get to set the pace and normally the process will consist of a number of joint informal meetings between both parties and their collaboratively-trained lawyers. The key to success is allowing the information gathered to be openly shared and exchanged. At that point, both parties will focus on interests, rather than positions, to work towards a solution that is best for all involved.
Other accounting, financial or communication professionals may be invited to participate in the process, to ensure the accuracy of
information and provide clear paths to resolution. Here, the two lawyers work together to arrive at an outcome that both parties will
Your final choice is litigation through the Federal Circuit Court (sometimes colloquially referred to as ‘divorce court’). While going to Court can seem daunting and often overwhelming, in some circumstances, this is the best and only option.
Court is not something that should be feared, as in some circumstances it is the best tool you have to resolve the dispute. While there is a greater upfront cost associated with going to Court, the overall benefit often outweighs the cost.
Which is the best option for you in reaching a resolution? Sometimes, this is out of your control. Get honest, straightforward advice from family law expert Nik Koolik before heading down a path that you may regret later.
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