Clients want to know how they can keep their legal costs low when they separate. According to the annual survey conducted by Canadian Lawyer magazine in June 2011, the average cost of a contested divorce in Ontario was $11,840; the average cost of a separation agreement was $2,688.* In a nutshell, the better you and your spouse can communicate, the lower your legal bill. Let’s look at how this works.
Often, the challenge is how to get two spouses to set aside their differences long enough to reach a number of difficult decisions together (usually involving the children, support, and division of property). You can do it in different ways. Your family lawyer can help you negotiate a separation agreement. You can use a mediator or an arbitrator. You can use a lawyer trained in something called Collaborative Family Law – a field of law committed to avoiding court. Or you can go to court and ask a judge to make your decisions for you. Court is the most expensive option. Paradoxically, court gives you the least control over your decisions. Court also takes the longest time. It is also the most emotionally challenging option. It might surprise you to learn that courts actually prefer you to reach your own separation agreement. With a few exceptions such as child support, the court believes you and your spouse to be more qualified to decide how to arrange your affairs. This is why it is usually better if the two of you can agree on how to settle the issues between you through negotiation, mediation or collaborative family law. The other reason is that spouses who communicate effectively pay lower legal fees: they can reach a result without the intense involvement of the lawyers that court requires.
If you have a written arrangement for these things, it is called a separation agreement. You don’t have to have a written agreement: however, if all you have is an informal agreement and if your agreement is not written down, what will you do if your spouse doesn’t live up to the agreement? Or if one of you forgets? How can you prove that you and your spouse agreed to certain things? The written agreement is what gives you certainty for the future. If you can agree on things and write down your decisions in a separation agreement, that is best for everybody, including the legal system. A separation agreement must be signed by both of you in front of a witness for it to be legal. Your witness must sign the agreement too.
Sometimes clients ask if they can write their own separation agreement. One reason that law can be difficult to understand that every situation is different based on the facts of each case. A lawyer’s job includes showing you what is fair and reasonable under your individual circumstances. This advice is custom-tailored for each client. That is why it is better that each of you to have the help of a family lawyer. Usually, you will need the help of a lawyer to advise on your rights to property, parenting and support.
Sometimes clients ask why there have to be two lawyers. For a separation agreement to stand the test of time, the court looks for each spouse to prove that they had their own independent legal advice. One lawyer should not advise both opponents in the same matter . This is because it is not possible for one lawyer to make sure that each opponent gets the best deal. You should speak to your own lawyer to make sure you know all of the legal consequences of your decisions. You have a right to complete and honest information about your spouse’s financial affairs before you make any decisions. A lawyer will also make sure that you understand what is written down and that you agree to it. Once you’ve had the advice of your own lawyer, the courts assume that you and your spouse will live up to your agreement in the future. If in the future, one of you decides you don’t like the agreement, you can try to negotiate a new agreement. However, if you cannot reach an agreement together, you have to go to court and ask a judge to change it, which can be costly for the spouses.
So, you can control your legal expenses by understanding your options, by communicating effectively with your spouse even after your marriage breaks down, and by working with your lawyer to craft an enduring separation agreement tailored to your individual circumstances.
*Source: Todd, Robert, “The Going Rate”. Canadian Lawyer. June 2011. Online at http://www.canadianlawyermag.com/images/stories/pdfs/Surveys/2011/legalfeessurvey.pdf
