In my last post, I discussed 8 roadblocks to settling your divorce. They are not easy to overcome, yet they are the reason that many divorce cases become so difficult to resolve.
My preferred method for dealing with a lot of these roadblocks is to get a neutral experienced third party involved who can deal with the roadblock. In an amicable case, this can be a mediator, preferably one with great credentials. Otherwise, this person normally is a judge. Although I like to try to keep cases out of court if possible, if there is a serious roadblock to settling your case, you’ll need to go to court, so for today I’ll just assume your case is a litigated one and the neutral third party is a judge.
One feature of the family court system in Ontario, which I support strongly, is early judicial intervention in a non-adversarial setting the case conference. Handled appropriately, the case conference can remove a lot of the obstacles I discussed and allow the parties or their lawyers to work towards a resolution of their case.
Here’s how a judge can help, particularly at a case or settlement conference:
1. The other divorce lawyer. In my last post I discussed how an inexperienced lawyer may not be reasonable simply because they don’t know what a local judge will decide. However, a judge at a case or settlement conference can give an opinion as to what the judge would decide at trial. I also discussed how an overly aggressive lawyer can be a roadblock. Family law judges really encourage reasonableness and aggressiveness often backfires in court. As well, an early victory at a motion can help in the case of an overly aggressive lawyer.
2. Unreasonable clients. Although many clients don’t listen to their lawyers, generally clients listen to judges. An early case conference can allow a judge to give an opinion as to the strengths and weaknesses of each spouse’s case. If someone hears something from both their lawyer and a judge, normally they will (begrudgingly) go along with it.
3. Child custody disputes. Getting the Children’s Lawyer or a child custody assessor involved can really help, both in terms of resolving the case, and in helping each party to see their strengths and weaknesses as a parent.
4. Delay. Getting the matter in front of a judge as early as possible and getting orders as to a time line will help with this.
5. Revenge. A judge can show a vindictive spouse the financial consequences and the consequences on the children of pursuing a path of revenge.
6. Legally aided spouse. An ongoing problem with legally aided spouses is that you negotiate an agreement and then at the last moment, the agreement is not signed. Having the negotiations occur in a formal setting in front of a judge can result in a court order instead. Also, moving these sorts of cases through the legal system as quickly as possible seems to work well in minimizing wasted legal fees.
7. Spouse not working. Your time in front of a judge is going to be limited – you’re lucky to get an entire hour. So, the judge will just want to deal with the big issues and if the spouse who is not working has come up with a lot of trivial issues that do not need to be resolved, the judge will normally be blunt and point that out.
8. Interference from family. At a case conference or settlement conference, you can ask the judge to exclude everyone from the court room other than the parties and their lawyers. This will allow you to get the interfering family member or friend out of the decision making process.
Obviously, my suggestion is not a magic bullet – if such a thing existed, all divorce cases would be completed in weeks rather than in months. However, judicial intervention in a non-adversarial setting through conferences can make a difference in a lot of cases.
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