Are you always having disputes with your spouse? Are you planning to get separated but uncertain about having a divorce? Maybe you want to think about it and consider a legal separation. A legal separation is somehow similar to divorce. In a legal separation, you’ll have to negotiate child custody and support, spousal support and the division of your properties. Besides, you are still legally married to your spouse, but can already live separately. 

However, deciding whether to get a legal separation or a divorce is sometimes confusing and challenging. It is crucial to understand the legal and emotional impacts of both options. You and your spouse must weigh the options together with a professional attorney. 

Legal Separation vs. Divorce

Legal separation and divorce have similar and different effects in so many ways. Both legal separation and a divorce legally separates you and your spouse. Whether you choose to have a divorce or legal separation, both of you are still going to live separately. Even your finances are also legally separated. 

If you have children, then you will also require child custody and support agreements. If you have marital assets and debts, you can divide it legally. The court orders all these actions. Getting a divorce and legal separation can create a healthy division in your lives. It also comes with financial regulations and sets reasonable boundaries that can save a family.

The main difference between a divorce and a legal separation is that the former signifies the legal ending of a marriage. It means that if you get a divorce, you are no longer married to your partner. If you are planning to remarry again with someone else, then you are free to do so. It’s like you are living your life again as a single person. 

Whereas, in a legal separation, though you are separated, both of you remain legally married to one another. When it comes to forms or papers, you must continue to mark that you are married. Another thing is, you cannot marry someone else, again. Read further as we explore the specific differences and similarities of divorce and legal separation.

Differences in Legal Separation and Divorce

There are main differences between legally separated and divorced. The most basic and standard distinction is that during a legal separation, you remain married and not in a divorce. When you get a divorce, your marriage is dissolved. Below are some of the other differences:

Marital status

In a legal separation, your marital status is retained, meaning you’re not allowed to marry again. In a divorce, you can remarry again.

Health care and other benefits

Legal separation allows the retention of healthcare and additional benefits, including certain social security benefits. On the contrary, all these benefits are terminated in a divorce.

Rights to properties

Separating on a legal basis preserves your legal rights to property benefits upon the death of your spouse. When you get a divorce, all these rights are extinguished.

Debts/liabilities

If you are legally separated, your spouse still has responsibilities for your debt. However, if you are divorced, your liabilities and obligations are handled during the dissolution process.

Decision-making

Under separation, your spouse is still considered next of kin and can still make medical or financial decisions for you. If you are divorced with your spouse, you are no longer considered next of kin.

Reconciliation 

Reconciliation is more manageable with legal separation than with a divorce. Remember that you cannot undo your divorce. In a divorce, if you want a legal reunification, you need to remarry.

Similarities Between Legal Separation and Divorce

Although there are a lot of differences between the two, there are similarities as well. In both legal separation and divorce proceedings, the court decides the following:

Separation maintenance

Legal separation includes the equivalent of child support and alimony. It also applies in divorce but is distinguished and is usually achieved through a motion pending litigation.

Child custody

Both proceedings include legal rights to guardianship.

Child visitation

Both proceedings have legal rights to visit the child.

Property division

Both legal separation and divorce property division are based on the couple’s situation and decision.

Why Get a Legal Separation Instead of a Divorce?

Choosing whether to get a legal separation or a divorce is often a matter of personal preference. Some people have personal or religious beliefs that do not permit divorce. If you are not allowed to get a divorce, then a legal separation is a good option. When you are legally separated, you remain married, but you can live separately. 

In some cases, a legally separated couple can continue their relationship. With this, both of you stay connected. If you are legally separated, you are still entitled to some benefits, like health, social security and pensions.

Besides, being legally separated can prevent total separation. It allows a couple to resolve all the critical issues in their lives while keeping the marriage going. Also, it is reversible, unlike a divorce that has no going back. Aside from that, when it comes to child custody and support, legal separations are easier. It does not sound as devastating and final as a divorce can seem.

Key Takeaways

The main difference between legal separation and divorce is the marital status and division. In a legal separation, you are still legally married to your spouse though you are living separately. If you do decide to get divorced, you have to go through some necessary legal steps to terminate your marriage. A family attorney with experience handling legal separations can clearly explain the pros and cons of legal separation and divorce.

If you have some questions in mind about divorce and legal separation, you can speak with Timothy Fultz Law Office today. Contact us for an appointment, either by calling us at 204 410- 8188 or sending your email to our Winnipeg office. All things are kept private and confidential. Reach out today!

The post Difference Between Legal Separation and Divorce appeared first on Timothy Fultz Law Office.

A large number of family litigants, maybe the majority, have never heard of a collaborative approach for resolving family disputes and those that have may not have considered it the best way for handling their separation. 

There is a number of reasons. The bitterness is too great or one or both sides feel the need to make the other pay or the need for vindication; some have a deep-seated desire to tell their story to a judge, or some just have a gut feeling may be collaborative is too “soft” or pie-in-the-sky for handling their case.

 This is not an exhaustive list of why separating couples feel the court is the only suitable forum. Sometimes, they are right, the court is where they have to deal with the separation.

But even in cases where court seems the only avenue, at some point, the parties start considering alternatives. For several reasons, the court wears down the parties. 

The length of time to resolve anything, the delays, the increasing costs that gradually eat away at resources and the ability to continue the fight, not to mention the wear and tear on their emotional health and strain on the whole family, especially the children. 

There’s the constant uncertainty, the shifting momentum, the confusion over results that are different from what you expected or what your lawyer told you about possible outcomes; this can come as a shock, particularly when you were convinced your case was so obviously right that how could a judge not see it – all these factors push people at some point to consider alternatives to court, particular alternatives, they dismissed in the beginning as not appropriate or thought not worth considering.

At some point in the litigation, parties will seriously try mediation; this could happen on the eve of trial as a last-ditch effort to avoid a costly trial. As you get closer to trial, people often start thinking about what happens if you lose. 

The parties then often find themselves in a marathon session thrashing out an agreement and making snap decisions because, ultimately, they want to avoid the trial more than test their luck on a throw of the dice in court.

Besides turning to mediation, which is usually the typical alternative option, what many people aren’t aware of is that they can start a collaborative process even after they’re in the middle of a high dispute court file. 

No matter how bitter the language back and forth and threats, ultimately the parties are looking for a negotiated settlement rather than to a pitched battle in court. Will it be difficult? Very likely. The first question before you get into the collaborative process is whether that lawyers will be able to navigate the transition from litigation mode into solution mode. 

Related article: Are you able to Stick to the Negotiations when it gets rough?

What are the advantages of the collaborative process? Why choose it over mediation?

The collaborative process resembles mediation but for a few important differences. For one, the standard collaborative process includes a term that if it does not result in an agreement and the matter goes to court, the parties’ lawyers cannot act on the litigation. This forces each party to change its collaborative lawyer to a new one who had no involvement in the collaborative process. 

Also, any party who wants to leave the collaborative process is bound to give a grace period, usually 30 days, before going to court. This allows the other party to find a lawyer and do preliminary preparation. The collaborative process also typically and freely utilize financial neutrals and family professionals as an integral part of the discussions, which is not the case with mediation. 

These professionals assist the entire process by acting in a neutral capacity keeping the parties focused on the final objectives, providing expertise and advice within their specific areas of specialty. Their participation allows the collaborative process to explore all the drivers of the dispute, areas that the lawyers have no specific expertise or comfort for handling.

How can you fit the collaborative process for your needs?

The collaborative process begins with the signing of a participation agreement. This agreement sets out the rules governing the process. As with any agreement, it can be modified and adapted to suit specific circumstances. 

That is important to understand because going from a court focused process to a collaborative will require amendments to the typical participation agreement, allowing for situations that will normally be contrary to the accepted collaborative principles.

For example, if parties who are in court want to resort to a collaborative process, the risk that they would lose their lawyer if the collaborative process fails might be enough to keep them from entering into the process. In order to start a collaborative process, the participation agreement can be amended to allow each party to retain its lawyer. 

This highlights the principle that the participation agreement, like any other agreement, can be framed and its terms determined ultimately by the parties. Although retaining the lawyers is contrary to a pure collaborative process, there is no legal reason why a non-pure collaborative process cannot be at heart collaborative. 

The agreement can also be changed in other respects. For example, if the collaborative process succeeds in resolving some issues but others remain disputed, the parties can agree on the procedure for returning to court to resolve those disputed items in a cost-effective way. 

This option is not so different from mediation where parties may settle most but not all issues and return to court to decide one or two outstanding areas, as opposed to several times those issues. 

While this may not conform to a pure collaborative process, if it allows the parties to exploit the benefits of the collaborative process to end the dispute, I doubt you will find a lawyer committed to collaborative procedure who would spurn making whatever changes are necessary to the collaborative agreement to get the parties into engaged discussions. The primary focus is to find alternative solutions to what appears an intractable problem

The collaborative agreement is flexible and can be tailored to eliminate features that might have discouraged the parties from resorting to it. Even if the final framework the parties establish offends the purist collaborative approach, the process nevertheless, can effectively be conducted as a collaborative process: this includes reestablishing trust, open, frank discussions, confidentiality, and obtaining the invaluable input of financial and family professionals, all conducted in an environment designed to reduce the level of conflict without belittling the basic lines of disagreement. The parties are not expected to have an agreement at first. The goal is to guide them to an agreement. 

Is your lawyer collaboratively inclined?

An increasing number of family lawyers have taken or are taking collaborative training. Some are strong believers in the process, some are luke-warm adherents, others have never had a collaborative file so they are unaware of its benefits for clients as well as for family practitioners. Some dismiss it as being a soft process, fine when the parties are in agreement on almost everything but not suited for cases where the parties hotly contest all issues.

This view is not true. The collaborative process is as well suited for dealing with conflict as is the court or mediation. However, putting aside the issue of difficult personality types, assuming a complex financial file requiring complex valuations, income assessments, accounting, tax and future cost projections what setting is more suited for fleshing out the complexity and details. 

A public court setting where the parties’ lawyers are haggling in front of a third party or a private setting where all parties can view the materials, get detailed breakdowns and explanations, raise questions and concerns and thoughtfully and jointly obtain whatever additional information and advise they need. 

This is only the financial aspects of a separation. The parenting is sometimes the most hotly contested areas of dispute and stands to benefit the most from what the “collaborative” process brings to the table.

Whether the financial information is simple or complex, however difficult the parenting dispute, the collaborative process, even an impure one, enables the parties so change the environment so that constructive discussions can be rekindled and the framework in which they are negotiating can lead to a finely tailored solution. 

IS THE COLLABORATIVE PROCESS WHIMSY PIE-IN-THE-SKY STUFF BUT NOT FOR ME?

I’ve heard the collaborative process dismissed as being “soft”, meaning great as legal therapy but not suited for hard-nosed negotiations. But the collaborative process is no “softer” than the negotiations of a commercial, labour of whatever other kinds of difficult “hard” negotiation you can imagine. 

If bitter labour and international disputes can be resolved, even when parties are at each other’s throats to begin, why can’t a family dispute, even a bitter one, be settled. A collaborative process however unconventional is premised on the view that parties will ultimately prefer to work out a problem; they stand to mutually gain by agreement. This premise is what will push parties to navigate obstacles, even avert ultimate failure. 

Could the collaborative process fail? Very possibly. No one can say with absolute certainty you will always reach an agreement.   But the chances of reaching one radically improve when parties subscribe to the cornerstone principles of collaboration, even when that collaborative process is a hybrid beast. 

If none of the lawyers are collaboratively trained, the option of turning to that process is probably nil. But with increasing numbers of lawyers completing collaborative training, it may be worth your while to inquire if this option is feasible. You may be surprised to learn not only that a collaborative style process can be explored but that the lawyers will enthusiastically embrace it.

Related article: The disagreement agreement: Putting your separation in writing

The post COURT AND COLLABORATIVE appeared first on Timothy Fultz Law Office.

Related article: 5 expensive mistakes to avoid during a divorce

The Self-Represented Client – The Way to Avoid High Separation Costs?

As a result of the ever-escalating costs, more and more clients choose to represent themselves. This is not always a tactical decision but, increasingly, one of simple economics: they can’t afford anything else, or prefer not to pay but want to conserve as much of their resources as possible. 

But even when you act for yourself you will need help. No one knows everything, but for someone with no experience appearing in court is scary, the formalities will be unlike anything you’ve experienced before – even a high number of lawyers do not have regular trial experience because their clients can’t afford it, except for some relatively small number who are either wealthy enough to pay or too caught up in the fight to see a way out or there are those who unfortunately have no other practical escape and have to go all the way. 

Preparing for court consumes a lot of time in preparation time and planning: 

• How best to tell your story? 
• What will the judge need to hear? 
• What evidence do you have?
• What’s relevant, supports your case,  and what doesn’t?
• How do you get the evidence in?
• How do you structure your case to get the most effective?

And these are only some of the questions you will be dealing with. Remember the time you have in front of a judge is limited so you have to make sure you use your time to best effect. The obstacles a self-represented person has to overcome are steep, for some too steep to overcome. Even if your case is strong, going against an experienced lawyer can put you at a disadvantage. So what can you do to even the playing field? This is where unbundled legal services come in.

Related article: How much does Divorce Cost in Ontario? 

What is unbundled Legal Services?

Unbundled legal services is essentially a pay for use system. You don’t hire a lawyer to take control of your file and do whatever they consider necessary while you pay based on time spent at an hourly rate. You are managing your file; you are making the decisions. But you hire a lawyer to assist you on specific tasks, whatever it is you feel you need help on, and you pay only for the services you use. This is not the perfect solution to high-cost family legal costs but it can be an extremely helpful tool.

Related article: Choosing family arbitration to settle your divorce issues

The Different Services Available with Unbundled Services

What kind of services can you hire a lawyer for? Virtually for anything you need help on. For example,

• You can hire a lawyer to prepare specific court documents. Once they are prepared his services are finished. How you pay depends on what you agree with the lawyer. It may be on an hourly rate but it can just as easily be based on a set fee. You negotiate fees directly with the lawyer. 
• If you feel comfortable about preparing your own documents, you may only want a consultation with a lawyer to review them before you file them in court. You pay only for the consultation or specific drafting work. 
• There are a variety of different purposes you might want to use a lawyer. If you break down a file into all the discrete tasks that go into preparation, the only limit on what you can hire a lawyer to help on is what you feel you need help on and what a lawyer’s professional ethical obligations may restrict. But a list of basic items include:

1. To appear on a motion;
2. To Appearing only at trial;
3. To explain specific processes, such as the procedure rules, what to expect when you go to court, the court etiquette; 
4. To prepare legal memos with case law and arguments to help organize and support your positions for the court;
5. To explain the different stages in the process and help you devise strategies for dealing with situations as they arise;
6. To devise negotiating strategies;
7. For coaching and giving behind the scene support;
8. Assisting in interviewing witnesses or how to question;
9. Assisting in brief preparation: case conferences, settlement conferences and trial management conferences.

There is no limit on what services can be provided or how the services break down; you define what you want the lawyer to do for you based on what you identify as your need. If you’re not sure what you will need, you can ask the lawyer for suggestions on what services you will need and what he is prepared to give. The important difference from the traditional lawyer relationship and the unbundled one is that with the unbundled arrangement the lawyer is hired for specific purposes and those alone. When that job is done, you pay for the job and the relationship is over unless you need something else; you don’t have an on-going relationship with the lawyer that you keep paying for.

Related article: Is collaborative family law right for your divorce?

The Unbundled Process – Sometimes called the Limited Scope Retainer

What kind of agreement will you get into with the lawyer?

When you hire a lawyer for unbundled services you will sign an engagement letter, which describes what you’re getting and what not. This is your agreement with the lawyer. This agreement is important because it will set out the job you hired the lawyer for. The lawyer will only do only that job, nothing else. If you hire the lawyer for multiple services those services will be identified; he will do those, not others. 

If you want to have a  lawyer appear for you for a motion, the retainer will specify that purpose. If you need a lawyer for a consultation to help you prepare court documents, the retainer will specify what documents are being prepared.  You remain still the one principally responsible for managing your file, the lawyer is your adviser or consultant giving information you need for making decisions; the lawyer helps you present your case so it looks more professional and persuasive; with the idea, you appear more lawyer-like. 

The engagement agreement with the lawyer makes it clear what you are getting and where the services end. You should not expect to get something more than what you’ve agreed on too. 

Unbundled services are not a complete cure for rising family court costs. But for clients in need, it is a way for them to get legal help while conserving financial resources. With unbundled legal service you can gain some control over legal costs.

Where Can You Use Unbundled Legal Services

Usually, clients resort to unbundled services for matters in court. This is the most expensive field for family conflicts and the most difficult area to control or even estimate what it can cost a client. But there is no reason to restrict the use of court cases. Unbundled services are available for any legal step in a family matter where you need limited but important legal assistance. 

For example, on mediations. With the increased use of mediation to resolve family conflicts, often people go into mediation without having proper legal information. Some people feel because they go to a mediator, there is no need for preparation. Somehow the mediator produces a solution. Nothing could be further from the truth. Successful mediations need all parties to prepare. The most successful is when everyone is informed and can negotiate from an informed good faith position.

Related article: Are you able to Stick to the Negotiations when it gets rough?

While a mediator can give legal information, they cannot give legal information aimed at giving you direction for your specific circumstances. The mediator has to remain neutral and impartial. 

To get information about your circumstances, options and realistic outcomes, you need to consult with a lawyer who can advise for your unique circumstances. For that reason, I always recommend seeing a lawyer before you start a mediation to get an understanding of how it works, what generally your rights and obligations are under the law and what possible negotiation strategies are available. A preliminary consultation with a lawyer is important particularly if you don’t have legal representation on the mediation.

When you are in the mediation there may be stages when a consultation with a lawyer will be recommended. Again, a limited consultation at a reasonable cost may be a relatively low but well-spent expense.

Summary

Unbundled legal services give persons involved in family disputes the ability to gain control over their legal costs. The lawyer helps clients to develop their positions, put together their arguments, and make themselves more presentable which makes them overall more persuasive. Outlandish positions, harmful to anyone trying to get the court’s sympathy and usually made by uninformed litigants, can be avoided. Clients pay only for the services they use so they decide when and what they need.

More and more family lawyers are offering unbundled services. For more information about these services feel free to visit: Ontario’s Family Law Limited Scope Services Project

The post UNBUNDLED LEGAL SERVICE – So you don’t want a lawyer? appeared first on Timothy Fultz Law Office.