This is a post I’ve wanted to write for a few years but I wanted it to come from a place of helpfulness. That’s my goal. I think that most people don’t understand this particular legal process and I have intimate knowledge of how it works. I’d like to spread the word.
Mediated divorce is a lovely little scam the legal community has devised to make couples think they’re choosing a less contentious way of negotiating a settlement. It’s a lie. Allow me to explain.
Many soon-to-be-ex-partners turn on each other when they’re splitting up. They fight over the house, the car, the houseplants, the carpet, you name it. Others simply want to be more civil from the start and do it quickly and cleanly. So lawyers came up with a way to sell a supposedly kinder and gentler method of splitting assets through mediation. Each side gets a lawyer and terms are negotiated, they say. It’s all sold to the couple as being very polite and calm. But it’s not a negotiation at all and this is what people fail to realize.
Mediated divorce settlements are based on the letter of the law, end of story. There is no real negotiation. Assets are split according to a law which says each party must leave the union on even footing, regardless of any other factors including who was working, who was not, who brought whatever into the marriage and who held up a heavier end of the ship. It’s a bit of play-acting by lawyers on both sides. By the time the truck has hit you and left the scene you may not even realize that’s what’s going on. It appears that each person gets his own lawyer but that’s false. The process gets two lawyers and the people involved are simply pawns in the process. In fact, if you try to negotiate you will end up with no lawyers because both will gang up on you. One tends to win and one tends to lose. And both get a huge legal bill.
Thousands and thousands of people are getting sucked into the false sense that they’re choosing a more grown-up way to split up through mediated divorce and it’s time that someone had the stones (or the ovaries) to take a stand and expose it for what it really is. It’s false advertising and a lack of negotiation wrapped in a pretty package disguised as negotiation. The next time you hear of someone embarking on mediation instead of the regular process, tell them what I’ve told you. Unless they’re at war, I believe they should deal with their own stuff and not let an antiquated and broad law take over. Spread the word. A lawyer’s currency is bullshit ($200 for photocopies?!) and this is just one more way they’re gathering wealth for themselves.
The Family Law Act, that which governs the division of property for those couples involved in the termination of a long term relationship, rules which vary from province to province, is a highly complex, antiquated and archaic piece of legislation whose main focus is to ensure and protect the rights of any children in the relationship. Unfortunately, unlike marriage legislation which is Federal administered by the Provinces, divorce legislation is solely the domain of the individual provinces and as such your recommendations have several Pros, Cons and potential legal ramifications.
There are a number of documents which need to be filed during the divorce proceedings based on a variety of criteria and time frames, which I have no idea if legal advice would be required or if an individual can do it on their own given the complexity of the act. For example: Did you know that you can be separated, living apart and yet be living under the same roof?
No matter whether you do it yourself, through a mediator or the courts, in each case you’re bound by the existing legislation, with the only way to avoid it is not to get divorced, or never get involved in a long term relationship, for the Act also applies to common-law relationships.
If you are entering into a second long term union, the division of assets in the event of divorce are best, and can be dealt with through a pre-nuptial agreement with the exclusion of the marital home.
At the end of the day, any settlement agreement upon being filed, no matter how it has been reached, the courts can over ride, alter and change any provision which they deem unfairly treats either of the parties and can impose a alternative settlement. And if children are involved, you can bet your bottom dollar that the courts will scrutinize the settlement agreement with a fine tooth comb.
As to the legal profession, too often divorcing couples allow the lawyers to hijack the proceedings, remember, you’re paying the bills, they offer suggestions and outline your legal obligations, but you call the shots and can fire them if they don’t listen.
Disclaimer: No I am not a lawyer, No I have never been married or in a long term common-law relationship. The above comments are based on that limited training I have received as part of my professional career and a brother and sister who have been divorced. And here is some irony, always seek professional legal advice before acting on anything stated or contained within the above comments.
I do have personal experience and outside of a mediation you can negotiate anything regardless of the law. If both sides agree, you can do what you want. Inside mediation you are screwed. That’s my point.
In a non-contested divorce, you maybe correct, and there is the key, non-contested, anything else the law steps in an likely would even do so when children are involved. Children change the entire dynamics of the proceedings.