If you are currently involved in a marital dispute, you may be going through a very painful experience.

Transcription

1 What to do in a marital dispute? Marriage counselling Separation and divorce Family mediation Negotiation Collaborative Family Law Litigation What to do in a marital dispute? If you are currently involved in a marital dispute, you may be going through a very painful experience. The lawyers at Actus Law Droit want to help guide you through the tough times and help you move forward to a brighter future whether or not that future includes your spouse. If you and your spouse have not yet sought help regarding your marital problems and are still considering ways to stay together, we highly recommend marriage counselling. If you and your spouse have decided to go your separate ways, the information below (see Separation and divorce ) will help you to learn more about the legal process involved. 1 / 5

2 Marriage counselling A marriage counsellor can help you take steps to resolve conflicts, remedy past grievances and improve your relationship. Under the Divorce Act of Canada, all lawyers are obliged to ask each client who files for divorce whether or not they want to be referred to a marriage counsellor. To find a marriage counsellor, consult your family physician, friends, family members, official online directories or the Yellow Pages. Your family physician can be an important resource when you are experiencing difficulties as a result of marital problems. They can also recommend professionals or services available in the community. If at any time during your marital dispute you find that depression, anger or loneliness interfere with your work, home tasks or parenting, professional counselling from social workers, counsellors, psychologists or psychiatrists may help. Separation and divorce A divorce legally ends a marriage in Canada. If your relationship ends and you wish to legally remarry, you must obtain a divorce from your present spouse. Most divorces are granted after 12 months of separation. While you are living apart but not yet divorced, you should do a separation agreement to resolve the issues, such as custody of children, child and or spousal support and division of assets or debt. If you and your spouse have decided to go your separate ways, begin the process of separation and divorce by sitting down with your spouse (when possible) and working out some of the issues on your own without the aid of lawyers. You will spend no money only your time. If you settle on at least some issues, bring the agreement to your lawyer and have your spouse do the same to the lawyer they have hired and have the deal reviewed. The agreement is not binding until it is in writing and signed by both spouses and both of their lawyers. Those unable to reach an agreement on their own should consider family mediation. 2 / 5

3 Family mediation Family mediation is a co-operative process in which a neutral third-party professional helps separating couples develop solutions to the issues they face. It is a voluntary process you can t force your spouse to go to mediation. Each of the New Brunswick Family Courts provides free mediation but has a lengthy waiting list so book an appointment for mediation early! Private mediators are also available throughout New Brunswick. Mediators in private practice charge an hourly rate which is usually shared by both spouses. For more information on mediation, check out Family Mediation Canada s website at Once a mediated agreement is reached, it must be reviewed with your lawyer prior to signing. It is not binding until signed by both parties as well as the lawyers for both parties. When the agreement is signed, the mediator writes a letter to both parties stating the terms of the agreement and asking each party to endorse the agreement as a memorandum of understanding. Mediation can save you money. The issues you can solve together don t have to be negotiated by two lawyers or decided by a judge in court. Mediation is confidential, avoiding public disclosure of personal problems. Through mediation, parents can also mediate matters such as parenting issues that will not get touched by the court. 3 / 5

4 Negotiation If there is a mediated agreement or memorandum of understanding, lawyers can begin the process of drafting the final agreement. If no terms of agreement have yet been presented, then the lawyers start negotiations on the file. Written proposals are usually sent back and forth between the lawyers. There might also be a four-way meeting between the lawyers and their clients, especially when custody and visitation are issues. Negotiation typically takes longer than mediation because all issues are communicated back and forth through correspondence, instead of all parties being present together to discuss issues. Collaborative Family Law This process is a combination of mediation and negotiation and is currently popular in Canada and the United States. Many of Actus Law Droit s lawyers have had specialized training in this area. In Collaborative Family Law, the goal is a settlement of all issues. The lawyers are used solely in the collaborative process and cannot file court proceedings for the client. If court is required, the collaborative lawyers must withdraw and the clients must retain new counsel to represent them in court. This sounds drastic, but it is a critical component to the process. As neither side is positioning themselves for court, their energies are used solely toward settlement. The process moves ahead with carefully managed four-way meetings. The lawyers meet together and with each of their clients in order to prepare for efficient and productive four-way meetings. All substantive information and decisions are made in these four-way meetings, giving the clients the control of the process. 4 / 5

5 Litigation While many divorce cases are settled before they go to court, some do end up there. When the matter heads to court, it is considered to be in litigation, with the final decision being made by a judge. Litigation is the most expensive and the most divisive aspect of family law. Preparing a file for court requires a lot of the lawyer s time to develop affidavits and proof of a claim. The court requires that pre-trial briefs be filed and that multiple copies of all documents be available. As lawyers charge by an hourly rate, this process results in increased cost to the client. In litigation, parents often shoot missiles at the other parent by way of accusations in their sworn testimony. When the parties have children, they are caught in the crossfire. Once stated, these accusations are remembered for a long time and will cause irreparable damage to the ongoing parenting relationship and, ultimately, the children themselves. This document has been prepared and distributed by Actus Law Droit and is not to be reproduced or distributed without its express permission. It is intended for general information only and not to replace the advice of a lawyer. 5 / 5