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Separation: Court Is Not the Only Option

Every family breakdown presents you with one basic question that will have major consequences on the conflict plays out. That question is how do you do it? - in a word, what process do you choose. While it may seem simple enough, the choice of process may have severe consequences on the substance of the conflict, the parenting, property division and support issues, but also on the costs and wear and tear to you from the conflict.

Assuming "legal" options are now the only alternative for dealing. Essentially you need to choose between essentially 2 paths: a traditional court process or a non-court one. The court process, whether taking place in court or outside in discussions, views each side as a combatant, each initially taking up strongly supportive positions. The process tends to promote and grow the conflict, until it gets resolved in the majority of cases. The non-court processes, on the other hand, focuses on reducing sources of conflict and promoting discussions on substance

The traditional Court Process

This is the high conflict option and, without doubt, the most expensive, the most stressful and the most uncertain one if you are concerned about outcomes. For all its drawbacks, nevertheless there are circumstances when it's the only recommended options.

The Non-Court Processes

These are the alternative dispute procedures. It helps to see the alternative procedures as having a number of types: one, being as simple as informal negotiations; another being the collaborative procedure; the third being mediation and finally, the fourth being arbitration. Each of these processes have their particular rules, all being simpler than the rules for the formal court process, but they all share one feature which is to reduce conflict so the substance that ultimately has to be decided can be addressed.

Each alternative dispute procedure has its advantages and drawbacks. But it is best you discuss with a lawyer the procedure that best suits your circumstances.

Basic Questions you need to ask for the Non-Court Process

The procedure you ultimately opt for will depend on an honest and frank assessment. The questions you will have to answer are:

  • how are you and your partner accustomed to making decisions;
  • how do you normally resolve disputes and negotiate;
  • what level of risk are you comfortable with and how do you handle risk;
  • how do you and your partner behave in conflict or potentially high conflict situations.

How you answer these questions are critical in choosing process and how it will look. For example, if you have problems discussing difficult issues with your spouse/partner how will you conduct yourself in a negotiation/ mediation? If your spouse/partner controls certain aspects of your relationship how will you overcome the power imbalance? If there are mental health issues how will these be managed? These are critical questions in any process. In the court process they play a role but under the surface; in the alternative procedures they are addressed in promoting a fair and equitable agreement.

For more information on how to select the legal process that works for you, please contact me [email protected] with specific questions relating to your particular situation. All inquiries are held in the strictest confidence and will be answered.

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