Updated: Sep 22
In a high-profile divorce case from several years ago, an Ontario couple spent four and a half years — and more than $2 million in legal and expert fees — in litigation before the court awarded the wife $10.6 million in spousal support, equalization payment and the proceeds of a life insurance policy.
When a marriage ends, people tend to adopt one of two mindsets: They either want to settle their divorce as quickly and painlessly as possible or they are primed for an epic battle. Those who are not vindictive usually want the most amicable resolution to salvage whatever decency exists between the former couple, especially when children are involved.
Frequently, the ones who come in with guns blazing, intent on getting their day in court, have fixed ideas about their rights and obligations in divorce, many of which are informed by anger and hurt.
While litigation is sometimes unavoidable, it’s almost always in the parties’ best interests to settle outside of court. It’s also important to note that the family judicial system is designed to help couples avoid court by resolving their differences through good-faith negotiations.
There are countless benefits to avoiding divorce litigation, but for the purposes of this post, I will highlight the top five, based on my more than 34 years of practice as a family law lawyer.
1. Less stress
If you’re in the middle of a divorce, you don’t need me to tell you how stressful the experience is. Even amicable splits are fraught with emotion. But a protracted divorce can exact a heavy toll on the parties’ emotional well-being.
The process can drag on for months — or years — effectively stalling spouses from moving forward with their lives. There’s also an added layer of stress that comes with the uncertainty around what a judge will decide for the family.
By contrast, couples who sort out their issues through mediation or collaborative negotiations usually find the process less stressful. It also helps to set the family up for success going forward by encouraging and enabling them to co-operate in resolving future disputes.
2. Lower legal costs (usually)
Litigation is an expensive process. Clients pay for the time a lawyer spends preparing their case for trial, and if their case is complex and involves expert testimony from business valuators, psychologists, social workers and the like, the expenses can add up quickly.
Most people underestimate the amount of time and effort it takes to prepare for litigation. Drafting court papers, collecting financial disclosure and co-ordinating other parties who may be involved are time-consuming undertakings that add to the cost of a case.
On top of that, the court imposes strict limits on the number of pages that can be included in conference briefs, which means lawyers need to spend time synthesizing the information so that a judge can easily glean the most important facts.
By contrast, a negotiated divorce settlement not only generates the best result for a family, it is often a more cost-effective road to resolution. Data from the Canadian Bar Association shows that settlements achieved through alternative dispute resolution serve clients’ best interests in about 90 per cent of cases, compared to around 30 per cent for litigation.
3. Control over the outcome
Asset division, parenting arrangements, child support and spousal support can all be negotiated through an alternative dispute resolution path, such as mediation, arbitration or collaborative negotiations.
People usually don’t recognize that when they ask a judge to decide the matters in dispute, they lose the ability to reach an agreement that will work best for their family. When you go to court, you’re essentially trusting a stranger to make the most important decisions for your family.
Family court judges are exceedingly busy, processing many cases every day. Each one comes with a small mountain of paperwork they must review to get up to speed on the case. While they do their best to understand the dynamics of your case, it is still just one person’s perception — and they could be getting it wrong.
4. Focus on the children’s best interests
Arguably, the most important reason to avoid a contentious divorce is your children.
Litigation creates a hostile environment that pits parents against each other. It’s easy to get caught up in the drama and forget that your children are also going through the most significant change in their lives.
Experts say that a child’s ability to recover from divorce depends to some degree on how parents handle the separation. When parents negotiate an agreement, it demonstrates to their children that they can co-operate in the midst of chaos, and they will have a much easier time adjusting to the changes that come from the divorce.
5. Faster resolution
The wheels of justice turn slowly, especially in COVID times when the courts are more backlogged than ever. Most clients are shocked to learn that getting to their first court date often takes six to eight months.
And long before a case ever gets to trial, spouses have to attend numerous mandatory settlement conferences in an attempt to help them resolve their dispute.
When negotiation won’t work
Of course, there are situations where a negotiated settlement will be unlikely, if not impossible. When one spouse is intent on getting more than their fair share of assets, is requesting unreasonable parenting arrangements or refuses to negotiate, it can stonewall any attempts to settle.
When one or both spouses have a high-conflict personality, a negotiated settlement can be difficult to achieve without highly skilled professional involvement. These types of cases inevitably involve prolonged court battles.
Spouses who can negotiate some or all the terms in their divorce will be in for a much smoother process than if one is determined to have their day in court from the outset.
If you are facing a separation or divorce and would like to understand your options, call us to schedule a consultation. We would be happy to help you.