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Most divorces settled without litigation: Fogelman

The financial and emotional toll of a court-litigated divorce encourages most couples to reach a settlement beforehand, Toronto family lawyer Herschel Fogelman tells AdvocateDaily.com.

“On one hand, you have a settlement, which provides people with certainty and finality,” says Fogelman, founder and principal of Fogelman Law.

“On the other hand, you have ongoing litigation, which brings uncertainty and risk, though within that risk lies the possibility of success,” he says.

In Toronto, Fogelman says 95 per cent of divorce cases settle before trial.

“The primary reason people don't go to trial is that it's just too expensive,” he says. “The cost/benefit matrix just doesn't work.”

Fogelman says it is generally accepted that each day in court will require a lawyer to spend another day prepping for it.

“If the lawyer charges $500 an hour, the actual five days of trial will cost the client approximately $25,000, then double that to account for prep work,” he says. “Then there’s pretrial attendances and all the other related costs.”

Fogelman says the secondary reason that most cases don’t make it to court is that Ontario’s family law system is geared toward resolution, starting with case conferences.

“These meetings are designed to steer the parties towards an agreement,” he says. “The process is very weighted in favour of settlement.”

A resolution benefits not only the litigants but the justice system, Fogelman says, as one judge can oversee 25 settlement conferences each week versus hearing evidence in just one divorce case.

“Judicial resources are much better served in a settlement environment than in litigation,” he says.

Divorce trials tend to be the purview of wealthy people with lots to fight over, and who want to be represented by those with a solid track record, Fogelman says.

“If someone were to review the last 100 divorce actions in Toronto, they would see repetitions in terms of counsel,” he says. “Clients that want to fight will pick a proven fighter.”

Fogelman says the non-monetary costs of litigating a divorce can be onerous.

“In terms of time, you could be looking at anywhere from 18 to 36 months before a divorce trial is over, where you will be spending your time with lawyers and accountants and evaluators, instead of with your family,” he says.

The emotional toll of a litigated divorce must be considered, Fogelman says, though that varies from person to person.

“I can't put a value on things like stress or your ability to handle risks,” he says. “For some people, it has very little value, while for other people, it's enormous.”

From his experience, Fogelman says “The certainty and finality of settlement are worth much more than the possibility of some unspecified success many months and many dollars from now.”

In a commercial law context, he says it is the accepted wisdom that going to trial to achieve less than $300,000 is not a good business decision.

“If your trial is going to cost $100,000 and you're fighting over $50,000, most sensible people will settle,” Fogelman says.

For those who can afford the expense and time, he says a litigated divorce may be the best, or only, option.

“Maybe the parties are very far apart, or there is some novel point of law that has to be settled,” says Fogelman. “Or maybe there is a recalcitrant person on the other side who is only going to be motivated by a judicial order.”

While most cases don't present these circumstances, he says some do.

“That’s why they pay judges. Sometimes the only remedy is trial,” Fogelman says.

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