Family

Collaborative divorce enables couples to tailor settlements

By Paul Russell, AdvocateDaily.com Contributor

If a couple opts to have a collaborative divorce, and then things go off the rails, there is still a good chance the process can get back on course, says Toronto family lawyer Barbara Kristanic.

“Just because you hit a stumbling block doesn’t mean it has to end,” says Kristanic, partner with Nathens Siegel LLP.

If the two lawyers representing the parties in the divorce can’t agree on a legal issue, the advice of an experienced, third-party lawyer can be sought,” she tells AdvocateDaily.com.

“With collaborative divorces, we have various tools in our toolbox, and a common one is to get other professionals involved, Kristanic says.

If the disagreement is over monetary issues, she says a financial expert — such as an accountant, a chartered business valuator, or a divorce financial professional — can be brought into the discussions.

Parenting professionals can also be called on if child-related issues are roadblocks in the talks, Kristanic says.

“In addition to having expertise in areas that the lawyers don’t necessarily always have experience with, outside professionals bring a fresh set of neutral eyes to the table, which can bring a new perspective to a file,” she says.

If talks remain stalled, or if one party drops out of the collaborative divorce process, Kristanic says the two sides can move to mediation or arbitration, or proceed to litigation.

“The key difference here is that the two lawyers involved can no longer act for the clients,” she says.

Conversely, if divorce hearings start off with mediation or arbitration, Kristanic says clients can keep their lawyers if it moves to litigation.

The primary advantage of a collaborative divorce is the parties can craft a settlement they both agree with, rather than having a judge or arbitrator impose one on them, she says.

“At the end of the day, the two parties are the main drivers of the agreement,” Kristanic says. “It’s really their process, with lawyers and other professionals offering assistance, as opposed to other types of resolution mechanisms where the lawyers are the driving force.”

Many collaborative divorces are handled by just the two lawyers and their clients, though there is always the option to customize, depending on the issues that are being negotiated, she says.

Kristanic says couples like the opportunity to “craft their own resolution,” which isn't possible with arbitration or litigation.

In her practice, Kristanic says collaborative divorce has a very high success rate.

“Once clients have signed onto this process, they’re invested in it,” she says. “If both parties go into a collaborative process wanting it to work, it generally does, though it can break down if s somebody is hiding information and failing to provide financial disclosure, or if they signed on only because the other spouse pressured them into it.”

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