Difference between revisions of "Resolving Family Law Problems out of Court"

More information about the training requirements of parenting coordinators is set out in [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Law Society Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

It is always best to write out the terms of a deal when a deal is done. Writing the agreement out gives everyone a written record of their settlement, which they can refer to if there's a dispute about the agreement down the road.

Lawyers and mediators always make a tremendous effort to record the terms of a settlement as clearly and comprehensively as possible, and will usually put the settlement into a formal document like a separation agreement, a memorandum of understanding, minutes of settlement, or a consent order.

A separation agreement is a written contract entered into after the breakdown of a relationship. The terms of the contract are the terms of the settlement reached between the parties, plus a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are signed by the parties and their lawyers. As a result, minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

A memorandum of understanding describes the terms on which all or part of a dispute has been settled. Memoranda are even less formal than minutes of settlement, and may not even be signed by both parties or both lawyers. A memorandum may even take the form of a letter sent by one of the lawyers:

While memoranda of understanding can be enforced by the courts on their own, they are almost always put into a more formal document later on, either as a consent order or as a separation agreement.

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or permanent agreement between the parties, on some or all of the issues, after litigation has started.  

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing.

If you have a change of heart after a separation agreement has been signed, you can attempt to negotiate an amendment to the terms of the agreement. Amendments are a further agreement, put into writing and executed just like the original separation agreement, and are usually described as an "amending agreement." However, if the other side isn't prepared to change the agreement, you'll have little choice except to go to court and ask the judge to make an order different than the terms of the agreement. Be warned: this will be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious and unexpected change in circumstances since the agreement was executed. You can't ask the court to make an order different from the agreement just because you've decided you don't like it. There must be an awfully good reason why the court should do anything different than what you agreed to.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Note that if you disagree with an order or a separation agreement and simply decide not to comply with the order or agreement, the other side will be able to go to court to enforce the terms of the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as a binding agreement in the same way that separation agreements are enforceable.

People sometimes have a change of heart between the time the deal is struck and the time the agreement is put into the form of a consent order or a separation agreement. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement.  

Finally, you should also consider whether the thing you want to change is worth losing your lawyer. If your lawyer was with you at the bargaining table and acted for you in negotiating the terms of your agreement, your lawyer is under a professional obligation not to continue acting for you if the agreement was made in good faith, in the absence of some deception by the other side. Your lawyer may have no choice but to quit, and you will have to hire a new lawyer.

==Further Reading in this Chapter==

* <span style="color: red;">Arbitration</span>

* <span style="color: red;">Parenting Coordination</span>

==Page Resources and Links==

===Legislation===

===Links===

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