Depending on how you choose to proceed, the process can be significantly different. It is important to proceed through your family law dispute having regard to reasonable expectation on outcomes. Each can be very different in both time and costs.
Litigation
In a proceeding before the Court, the process can be broken down into four steps:
- Exchange of pleadings
- Motions and Disclosure
- Negotiation and settlement
- Trial
Exchange of Pleadings
One party will issue and serve upon the other their pleading, which outlines what orders they are asking the Court to make, and the reasons for the request. The opposing party is then given time for file their response to the request. If both parties have counsel, it is likely that some discussions will take place to try and resolve minor issues that come up. After pleadings are exchanged, the parties, and their counsel, will attend a conference. Depending on the jurisdiction, these conferences can be with a Judge or a Dispute Resolution Officer.
Regardless of the name of the conference, or who is presiding over it, the parties are typically encouraged to agree to a disclosure schedule for the exchange of financial and other information. Depending on the case, and the issues in dispute, the parties may receive some feedback from the presiding judge or dispute resolution officer about the prospect of their case and claims. Issues like parenting time, are sometimes worked out at this conference.
Motions and Disclosure
Following a conference, the parties are then permitted to bring motions and start the disclosure process. Motions can be for temporary orders to address issues such as (1) temporary child or spousal support, (2) a temporary parenting plan (3) disclosure of income sources (4) appointments of professional to provide reports on issues in disputes, or (5) orders concerning the occupation of jointly held property.
Also during this process, the parties may conduct examinations for discovery. An examination is an opportunity for counsel to question opposing parties on issues that are in dispute. These examinations typically occur at the office of counsel or at a professional reporting business.
Negotiation and Settlement
This is the stage where most family law matters conclude. At this stage the parties have all of the necessary disclosure they require. They may attend a settlement conference through the Court, or agree to attend mediation to resolve issues.
In some cases, the parties, through counsel, may be able to work out an arrangement to resolve all of the outstanding issues. In the event the parties resolve their issues, they are then permitted to file the terms of settlement with the Court, and they will receive a final order, in line with the settlement.
Trial
Some family law disputes simply cannot settle without Court intervention. A trial is an opportunity for both parties to present their case to a Judge, to make a decision on all of the issues in dispute. A trial is typically conducted in person, with each side presenting oral evidence, that is then subject to cross-examination by the opposing party.
Most family law cases that result in a trial, have some issues settled. For example, the parties may agree on all property issues, but disagree on parenting time. In this type of case, the parties would file a partial-settlement with the Court and proceed with the trial on the issues in dispute.
Mediation
Mediation is a form of alternative dispute resolution. Rather then having a judge decide a family law dispute, a mediator can assist the parties in resolving their dispute.
Mediation is typically done with a licensed family law lawyer, and the parties are able to agree on how the mediation will operate. For example:
- Will the mediation be “closed” or “open”? A closed mediation is off the record or confidential, and an open mediation is on the record, and parties can speak openly about the mediation, in the event a resolution is not achieved and they have to reengage in the Court process. Most mediation are “closed”, as this helps parties speak openly about resolving matters, without having to worry about what may be used in a potential Court hearing.
- Will the parties work together, or will the mediator keep everyone separate? Some clients prefer to avoid conflict by speaking directly with their former spouse. Some mediators will assist the parties by keeping everyone separate and working out an arrangement through a caucus-style mediation.
- Who will pay the cost of mediation? In some cases, only one party can afford to pay the mediation fees. However, the parties can agree that the fee may be paid by one spouses, with the understanding a credit will be given against any property or support claims agreed to at mediation.
Mediation is a helpful tool in working out a constructive resolution. Mediation are usually run with each party having their own lawyer present to assist them in negotiating a resolution. This form of alternative to the court process is most helpful in ensuring a equitable sharing of property, while maintaining an effective co-parenting relationship.
Collaborative Law
Collaborative Law is the process in which parties work together to create a settlement of their separation. During this process the parties are more concerned with the settlement of issues, then the straight application of the law to the facts.
In most of these types of negotiations, the parties are working with professionals to create an agreement that is fair to the parties, having regard for how a Court might decide their issues.
Typically, the goal of the collaborative law process is to ensure the amicable separation of the parties’ assets and parenting responsibilities. It is important that parties are well informed as the consequences of their agreements, and not simply unaware of what might happen with the strict application of the law.