Settlement: The Most Attractive Option

In Ontario, it is possible (and preferable in most cases) to keep support, property and custody issues from ever going to court.

Dealing with all these issues privately is a great benefit as you can craft whatever solution works for you and your family. If any of these issues is not settled by private agreement, such issues could be decided by a judge publicly if either spouse initiates and proceeds with litigation.

Most spouses in Ontario choose to settle their issues privately since most are able to decide the matters of custody, support and property division without a judge. Anything you agree to can be written up in a Separation Agreement. A Separation Agreement generally follows a certain format: an introduction to the parties, some recitals about why the contract is being entered into, separate articles devoted to various topics such as property division, custody and so forth. This is not the only format that can be used, but it is a commonly used format. It is helpful and recommended to have a lawyer help you draft your agreement to ensure that it is valid, fair and legal.

Sometimes, where litigation has already been initiated, parties can indicate settlement through what is called a “Consent Order”. A consent order is simply an agreement by the parties that is vetted and signed off by a judge. The judge does not rule on the issues but will generally just sign off on what you and your spouse have agreed to.

Whether you have reached a mutual agreement or by court order, your settlement is enforceable by the court if you file your agreement with the court.

Why settlement is preferable
Settlement is preferable for many reasons. One of the big reasons is cost. Because you can often discuss theses issues with your ex-partner privately,  the amount of time spent with lawyers and in court are significantly lower than if the matters were litigated. The emotional strain of court proceedings is also significant and private settlement avoids this for both spouses, children, other family members and friends who may be dragged in. Divorce itself creates stress on everyone and it does not have to be made worse with a prolonged court battle. Financial resources are limited and what once went to one intact family unit must now stretch to meet the needs of two households.

Simply because of the decrease in cost and emotional harm, you can see why so many people prefer to settle than deal with court papers, appearances and the anxiety that goes along with it. On top of these benefits, you also have more control over the decisions you can reach with your ex-partner, rather than giving that control to a judge. Everyone loses when a judge is put in charge of your future. When you make your own agreement, you must follow the law, but you can be creative in tailoring a solution that best suits your family. You can take into account your priorities, values and customs in a way that the law could never do. Court should really be a last resort.

Even if you are unable to settle all issues, you can try to agree on as many as possible and let the court decide those issues which are more difficult to sort out. Don’t let an impasse on one front derail you from your goal of avoiding court on the other issues.

Negotiating successfully
Negotiation is not easy. Some people are better at it than others. But it is important in any negotiation that you concentrate on the issues that are most important to you. Negotiating always ends up as a trade-off of some sort so do not lose sight of the matters that are most important to you. Focus your attention on the important issues and trade off the less important ones. If you know that your most important issue and that of your spouse are the same, negotiating may be a waste of time. Even worse, you may be taken advantage of and lose out. Be careful to avoid this.

There are some great books about how to negotiate effectively. A good place to start is with Getting to Yes: Negotiating Agreements Without Giving In by Fisher and Ury. The chapters in that book summarize some important points to keep in mind at all times, such as: Don’t bargain over positions; Separate the people from the problem; Focus on interests, not positions; Invent options for mutual gain; Insist on using objective criteria; Know what to do if the other side is more powerful, or won’t play, or is using dirty tricks.

It is a great book because it takes you away from focusing on the nitty gritty and looks at interests, or what is really important to you.

Negotiating a separation is not easy. There is no denying it. Many things can go terribly wrong in the process: conflict can escalate and get out of control, someone can commit to a solution that is not in their best interest and stress for both parties and children can be insurmountable. Lawyers and other professionals can help to alleviate some of these concerns.

Another problem of negotiating a separation agreement is that it is very difficult to overcome the reason you are separating in the first place. One spouse (or both) may have been unfaithful or untrustworthy and these are hurdles that are too difficult to jump. This is particularly the case since negotiation depends upon trust between the parties. Trust that is often not present between divorcing couples. It is easy for an outsider to say “control your emotions” and that is the advice I offer, but this is obviously no easy task. Having some objective criteria in mind can help you to, at least, benchmark what you should aim for in the negotiations. You should know what the law says you are entitled to and have a clear idea of your and your spouse’s income and expenses. These are critical bits of information without which you cannot possibly have an educated opinion of what you want.

If you decide to take a stab at the negotiations with your spouse alone, you should keep a few points in mind. First, pick a neutral place to negotiate and schedule a time to sit down. Ad hoc negotiations are difficult to get under control. If at any point the negotiations get out of control, end them before either spouse says things that render the discussion destructive. Try to find common ground on at least some of the issues. A good starting point for settlement discussions is for you and your spouse to recognize, and enumerate, all the areas on which you agree. You can then start on a good note and work on the more difficult issues once some trust has been gained.

Eventually, however, you will have to deal with more contested issues. Hear your spouse out without being argumentative and then expect the same respect from your spouse. Set out the objective criteria you are basing your requests on in order to gain some legitimacy. Be careful when you set out exact numbers as these “anchor points” frame the negotiation. Once you state a number you are willing to accept, it is unlikely you will be able to ask for more later without offering other concessions.

You should try to cover all the issues between you and your spouse in the negotiations. Remember that if you do not reach an agreement, the alternative is going to court. Look at what your costs will be if you go to court and what the likely outcomes will be. These discussions often help guide the negotiations along a more productive path if you reach an impasse. Chances are you can settle the issues between you, even if they seem impossible to settle at times.