Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice
Welcome to our beautiful Spring weather! In today’s blog I explore a new and innovative option for resolving one’s issues in Divorce and in the breakdown of a Common Law Relationship, that is viable and solution oriented.
This process is called “Mediation/Arbitration” (or “Med/Arb”), and offers just such a solution.
Med/Arb is a process where the parties agree to have a Mediation as Step 1. If the parties reach Agreement on all their issues, then a Separation Agreement will be prepared. However, if the parties aren’t able to reach Agreement on all the issues in their Divorce through Mediation, then the process will change to an Arbitration. The Mediator then becomes the Arbitrator.
In Arbitration – the second stage – there will be a solution, as the Arbitrator will make a formal Order at the end of the hearing. This Order is enforceable, just as a Court Order.
An Arbitration hearing is very much like a Court hearing. However Arbitration avoids the delays, adjournments and complicated procedural requirements that Court proceedings often have. The parties select a timetable that works for them, unlike in Court where it’s not in their control.
The pros of using this hybrid process include that, in the Mediation Stage, the parties work to reach agreement on the terms of a Separation Agreement resolving all their issues. The Mediator assists the parties to help find final solutions. However, if the parties can’t reach agreement, then the Mediation transitions to an Arbitration.
This is when the solution comes via Stage 2: the Arbitration process. In this process, the Arbitrator will hear submissions by both parties, and the Arbitrator will make a decision that is binding and has the same effect as a formal Court Order.
In both these processes the parties’ respective lawyers are involved.
Using this hybrid process often encourages the parties to work very hard to reach Agreement during the Mediation stage, as they know that if they are unable to reach Agreement, then the Arbitrator will make the decisions for them.
Having had many years of experience (over 35 years) as a Family Law Lawyer and Mediator, and with extensive training in Law, Mediation, Collaborative Divorce, and Arbitration, I utilize Mediation/Arbitration as one of several processes my firm offers for resolving one’s divorce.
Med/Arb combines peaceful resolution, together with the hand of the law when needed, with the result that the parties will obtain a final settlement of all the issues.
A wonderful benefit of using this process is that the parties will have closure at the end of it, and can now move on to the rest of their lives.
If you are interested in exploring the possibility of using Med/Arb, please feel free to contact me at anne@annefreed.com. I provide a 30-minute Complimentary Consultation, during which we explore the many options available to you to resolve your divorce in the best way possible for you.
Until next time!
Anne
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, as well as over 35 years’ experience in the practice of Family law and Family Mediation.
Happy New Year to my LinkedIn Readers! I hope you are enjoying our Montreal-like snowy winter! We had a brief respite and then COVID loomed its head again with the new strain of virus: the Omicron. I wrote a blog last November about a possible solution for couples experiencing difficulties in their marriage or cohabitation, exacerbated greatly by the restrictions forcing couples to remain inside with no escape from each other. This article has now become relevant again because COVID is still here. Here is my article:
MEDIATION OF MARRIAGE CONTRACTS – YES, THEY CAN BE DONE MID-MARRIAGE! – AS A SOLUTION FOR COUPLES HAVING COVID CLAUSTROPHOBIA:
November 2020
Reflections by a family law mediator on COVID’S effects on marriages and common law relationships, and how mediating a marriage contract can provide a solution.
How has COVID affected people’s marriages and relationships, and if so, is there a viable solution?
The COVID crisis has forced us to live our lives inside our homes almost 24/7. The normal routine where spouses spend the workday in separate places has been shattered. Children do their schooling at home. Thus, the ability to ‘get away’ from one’s spouse and children has been sorely reduced if not eliminated. Today’s question is: Can marriages and relationships survive all this forced togetherness, and if so, how?
1. In ‘normal life,’ there are long marriages, good marriages, okay marriages, bad marriages and terrible marriages. By marriages, I am including common law relationships. For today I define a “good marriage” as one where the spouses are able to enjoy each other’s company, find space from each other even in the confines of the home, and most importantly they are able to face and handle conflict. By that I mean that the spouses are able to face conflicts when they arise, as is inevitable in relationships, and have the difficult conversations necessary to sustain a healthy relationship. Even these good marriages are being tested in this challenging time of COVID, and each party must put – in my view – extra energy and work into their relationship for it to continue to thrive.
2. Then there are the ‘okay’ marriages where, before COVID, the spouses were apart much more than they were together, with work, activities, get-togethers with friends and colleagues and so on, separating them through the week. Before COVID, this marriage worked because they could physically be away from each other most of the time. In these marriages, spouses often cannot deal with conflict and one or both sweep conflicts under the rug such that they become an insurmountable pit over time. These spouses stay together because of convenience, habit, common friends, because they like their way of life, etc. In this relationship, it’s probable that, because the spouses are now forced to be in close quarters with each other almost 24/7, their relationship is sorely tested. This is a relationship where, as COVID progresses and the shutdowns continue without a known end, the tension between the parties becomes thicker and thicker, with no resolution.
3. Number 3 is the bad marriage. This is a marriage where there was, prior to COVID, almost no connection between the parties, where they were like ships passing in the night (also previous). In this relationship, there is mental abuse and also, likely physical abuse. This situation is explosive and dangerous. It is a situation which is untenable and unsafe to remain in. There are many resources in the community for the spouse who is being abused. It is not in the realm of this article to discuss this extremely important topic.
There are remedies for spouses who are in situations 1 or 2 above. One remedy is that the parties can negotiate a marriage contract. They know that there are problems in the marriage/relationship but are not ready to leave. In fact, at this time they often can’t leave because of COVID. However, the parties (or one of them) want to have certain terms agreed upon going forward, including regarding the children and property and financial issues. These issues can also include who will get the home if the parties separate. Even such issues as division of labour in the home can be put in a marriage contract.
The law is clear that parties can negotiate a marriage contract or cohabitation agreement in the middle of a marriage. Most people think that a “Pre-nup” (an American term) can be negotiated only before marriage. However, this is not the case. In Ontario we call these “marriage contracts,” or “cohabitation agreements” and they can be made at any time during the marriage or cohabitation. A marriage contract can provide a great comfort and security to the parties in this time of COVID. They can be negotiated in many different ways. One positive way – if viable for the parties – is through Mediation.
Welcome to Spring! We’ve been blessed with sunny weather and, with the COVID vaccines now a reality, are finally beginning to see the light at the end of the tunnel.
However
the COVID pandemic – now over a year long – has exacted a huge toll on
marriages and relationships. For many it has resulted in people deciding to
separate, and to seek resolution of their issues via a Separation Agreement.
Many of you have read my November 2020 blog, which was about the fact that parties can negotiate a marriage contract in the middle of a marriage (or cohabitation agreement in the middle of a common-law relationship). For those who have done so, hopefully this may have resolved issues for the parties to continue their relationship.
My point in today’s article is that, in the quest of getting it over with by doing a “quick and dirty” Separation Agreement, that will most likely not resolve the issues and may well come back to haunt the spouse later. I recently had a client – Mrs. X – who came to me several months after she had signed a Separation Agreement with another lawyer. Mrs. X deeply regretted the Agreement that she had made and felt that she had settled for far less than she should have. She told me that she had separated in the fall and had signed a Separation Agreement also in the fall. Further questioning revealed that, in the interests of getting her Separation Agreement finalized quickly, she had requested that her lawyer take several shortcuts. These shortcuts included not obtaining a value of the matrimonial home, not requesting a valuation of the spouse’s pension, one of the spouses not providing the required full and detailed financial disclosure, and so on. It was clear that Mrs. X had not provided all of the detailed documents necessary so that her lawyer could do the necessary analysis to calculate Mrs. X’s legal entitlements. It was also clear that Mrs. X had been very worried about legal fees, and hence had limited her previous lawyer’s time/work.
Now,
6 months later, what was Mrs. X to do? I told her that the good news is that, in
family matters, a spouse can apply to the Court to set aside a Separation
Agreement. However, this is an uphill battle, and the onus will be on Mrs. X to
prove the necessary circumstances/elements that the law requires in order to
win such an application to the Court.
The
difficult part is that – in addition to the fact that in Court there are no
guarantees – the work that her new lawyer will have to do will greatly add to her
legal fees, as the work will be much more complicated than had Mrs. X allowed
her previous lawyer to do the necessary work in the first place.
So, today’s teaching piece is that, if you’ve decided to separate, beware of doing a “quick and dirty” Agreement. You may well succeed in your goal of saving time and legal fees. However, in doing so, you will have most likely limited your lawyer’s time and work to do her/his due diligence necessary to meet the long-term results you want, i.e. a Separation Agreement that is fair to you.
I wish you all a Happy Passover and Happy Easter.
Until next time, Stay safe.
Anne
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, as well as 39 years’ experience in the practice of family law.
Firstly, I want to wish you all a Happy and Healthy 2021.
Today’s topic is: How to retain a lawyer for one’s separation/divorce without incurring huge legal fees, or, to use the colloquial:
How to hire a divorce lawyer without breaking the bank!
In this time of COVID, the effects are not just to our health but also include the emotional and financial fallout. The effects of living under one roof for this long and – and so far, unending – period of time, test even the best relationships and marriages.
For
marriages that were “on the rocks” before the pandemic and its closures, the
pandemic has accelerated the parties’ problems to the point where many people –
including Sally – have decided that they want to take steps immediately to
separate and divorce.
However,
there is a huge roadblock facing Sally. She wants to hire a lawyer – as she’s heard
nightmare stories from people who have represented themselves – however she
knows that will necessitate large funds.
So, Sally
feels stuck. She wants to leave the marriage now but can’t afford to
hire a lawyer to help her in this.
There is an
alternative for Sally called “unbundled legal services.” What this means
is that Sally can use a lawyer as and when needed during her case. The lawyer will
help her in parts of her legal matter and from time to time rather than for the
whole thing.
In between,
Sally will do the work herself she feels is within her capability. For example,
Sally will have a first meeting with a lawyer, and with her lawyer they will
look into what parts of her case she wants the lawyer to do and what parts she
will do herself.
The “WIN/WIN” for Sally in choosing this process, is that
Sally will save a great deal of money on legal fees, and at the same time she
will be able to proceed with her divorce with the help of the lawyer, without
the financial worry of the fees she’d have to pay a lawyer who is working on
her case full time. She will get the benefit of expert legal advice from her
lawyer, but without the fear of huge legal fees. In this process, the lawyer and
Sally will work out what the lawyer will need for each part of the process that
Sally wants the lawyer to help her on. Therefore, fees for these discrete parts
can be estimated in advance and will be much lower, than if Sally retains a
lawyer on a full retainer basis.
This process
can provide a solution for Sally and many others who have made the decision to separate
but can’t afford the legal fees to do it right. “Right” means that Sally
can have help from the lawyer when she wants and needs it – be it concerning
custody, access, support, and/or equitable division of property and protection
of her rights.
Using the
services of a lawyer on an ad hoc as needed basis provides a much less
expensive financial alternative to Sally, such that she can get her divorce
started right away and begin the process of removing herself from a situation
that has become intolerable, now rather than later.
This is a valuable
option for people to consider in these difficult times.
As a family
law lawyer and mediator, I offer this service as one of a basket of process
options.
For further information,
please feel free to contact me at (416) 368-0700 or at anne@annefreed.com.
For more information on unbundled legal services see my website at www.annefreed.com, and www.familylawlss.ca, which has further information and a list of lawyers who also offer this process.
In the
meantime, Please Keep Safe! Until next time!
Anne
Anne Freed holds a BA (Honours Sociology), JD (Juris
Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute
Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice,
as well as 39 years’ of experience in the practice of family law.
In this time of Covid, many people are considering divorce. One positive
suggestion is for the couple to see a family lawyer /mediator together
for the first meeting. I call this process: ‘Early Neutral Evaluation.’ When I
see a couple on this basis, I explain to them their respective rights and
obligations should they decide to separate and provide them with detailed
information to assist them in making their decisions moving forward. This can
avoid the nightmare that happened in the movie “Marriage Story”
where each retained their own lawyer immediately – one of whom was the
proverbial “shark lawyer” – and the whole thing escalated to a point far beyond
what the spouses each wanted. Read my recent blog below, to see if my above
suggestion could have changed the outcome in “Marriage Story.”
REFLECTIONS ON THE MOVIE “MARRIAGE STORY” BY A FAMILY LAW LAWYER; AND INTRODUCING A HEALTHIER OPTION (blog published March 22, 2020)
Dear Readers,
Welcome to my – early spring! – Newsletter. My topic for today is on the
movie “Marriage Story,” and, is there a better way? Many of you have seen the
movie on Netflix. If not, I highly recommend it. This is a poignant drama about
two people – the husband played by Adam Driver and the wife played by Scarlett
Johansson – whose relationship has broken down and they have decided to
separate. They find themselves drawn into a system where their lawyers pit one
against the other in an adversarial process which, by its very nature, begins
to destroy the fragile bonds that the couple still share, the most important
one being their love for their young son and wanting to do what’s best for him.
In the movie, the husband (“Adam”) retains a “reasonable” lawyer at
first – played wonderfully by Alan Alda. However, Adam is forced to fire him
and retain a “pit-bull lawyer,” so as to have an equal adversary to the scare
tactics employed by the wife’s lawyer – played by Laura Dern, who won an Oscar
for her brilliant portrayal of a pit-bull, charming, manipulative, adversarial
lawyer who used all the tricks in her toolbox to bring Adam down to level zero.
After watching the movie, I reflected that, had the parties gone
together to a first meeting with one lawyer, the damage that ensued may well
have been prevented.
I call this process: ‘Early Neutral Evaluation – A Healthier Option.’
For this process to be viable, the parties are at the early stages of their
divorce and are able to sit in the same room and have a certain modicum of
respect for each other. This process requires a certain type of lawyer, who is
skilled in negotiation and mediation, as well as being an expert in family law.
The Laura Dern lawyer would not fit that profile!
In early neutral evaluation, I meet with the parties together. We have
one meeting or several, depending on what the parties want. I listen to each of
their stories, sometimes in separate rooms, and then together. It’s quite
common that, when a couple breaks up, each party has a different view of the
‘facts!’
I ask the parties what their objectives are and what outcomes are most
important to them. When hearing their stories and objectives, I look for
commonalities between them. As a family law lawyer who’s practised for over 30
years, and who is now focusing on mediation and collaborative practice, I’ve
seen how parties often demonstrate in the joint meetings the connections that
were the good parts of their relationship! I utilize those good communications
to keep the lines of communication open and help them find common ground. From
that, I explain to them the various processes they have available to them when
they separate. These options include ‘kitchen-table’ negotiation, mediation,
med/arb, collaborative law, arbitration and finally Court as a last resort.
I’ve set out these various options and a brief explanation of each, on my web
site www.annefreed.com at www.annefreed.com/six-process-options.
After explaining the various process options available to the parties,
we turn to a discussion of the law. I discuss with the parties the requirements
necessary to have a legally enforceable Separation Agreement and provide them
information about the legal issues.
At the end of our meeting, the parties will have the information they
need to be able to go forward in their separation in a positive and
collaborative manner. They will not have spent huge sums – that they cannot
afford! – as the parties in “Marriage Story” did. They will not have undergone
the terrible emotional scarring that Adam and Scarlett suffered.
In “Marriage Story’s” conclusion, the couple manages, against all the
odds caused by bitter war their lawyers have engaged in on their behalves, to
come together on their most important common ground – their love for their
young son. As the end of the film shows, it is from that common ground and not
from the lengthy litigation war that almost closed the door for them, that the
parties begin to work together in their decisions going forward.
I suggest that people consider using early neutral evaluation, where
appropriate, as a healthier alternative. By this, the parties will not emerge
afraid of the next steps and emotionally depleted and scarred, but rather ready
to engage, in a much healthier way, in the hard legal and emotional work of
separating in a manner that’s best for them, and most importantly for their
children.
Please feel free to contact me if you are interested in exploring this
healthier alternative.
Until next time!
Anne
Anne Freed holds a BA (Honours Sociology), JD
(Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative
Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and
Collaborative Practice, and Certification in Collaborative Practice, as well as
38 years’ experience in the practice of family law.
Reflections by a family law mediator on COVID’S effects on marriages and
common law relationships, and how mediating a marriage contract can provide a
solution.
How has COVID affected
people’s marriages and relationships, and if so, is there a viable solution?
The COVID crisis has forced
us to live our lives inside our homes almost 24/7. The normal routine where
spouses spend the workday in separate places has been shattered. Children do
their schooling at home. Thus, the ability to ‘get away’ from one’s spouse and
children has been sorely reduced if not eliminated. Today’s question is: Can
marriages and relationships survive all this forced togetherness, and if so,
how?
1. In ‘normal life,’ there
are long marriages, good marriages, okay marriages, bad marriages and terrible
marriages. By marriages, I am including common law relationships. For today I
define a “good marriage” as one where the spouses are able to enjoy each
other’s company, find space from each other even in the confines of the home,
and most importantly they are able to face and handle conflict. By that I mean
that the spouses are able to face conflicts when they arise, as is inevitable
in relationships, and have the difficult conversations necessary to sustain a
healthy relationship. Even these good marriages are being tested in this
challenging time of COVID, and each party must put – in my view – extra energy
and work into their relationship for it to continue to thrive.
2. Then there are the ‘okay’
marriages where, before COVID, the spouses were apart much more than they were
together, with work, activities, get-togethers with friends and colleagues and
so on, separating them through the week. Before COVID, this marriage worked
because they could physically be away from each other most of the time. In
these marriages, spouses often cannot deal with conflict and one or both sweep
conflicts under the rug such that they become an insurmountable pit over time.
These spouses stay together because of convenience, habit, common friends,
because they like their way of life, etc. In this relationship, it’s probable
that, because the spouses are now forced to be in close quarters with each
other almost 24/7, their relationship is sorely tested. This is a relationship
where, as COVID progresses and the shutdowns continue without a known end, the
tension between the parties becomes thicker and thicker, with no resolution.
3. Number 3 is the bad
marriage. This is a marriage where there was, prior to COVID, almost no
connection between the parties, where they were like ships passing in the night
(also previous). In this relationship, there is mental abuse and also, likely
physical abuse. This situation is explosive and dangerous. It is a situation
which is untenable and unsafe to remain in. There are many resources in the
community for the spouse who is being abused. It is not in the realm of this
article to discuss this extremely important topic.
There are remedies for
spouses who are in situations 1 or 2 above. One remedy is that the parties can
negotiate a marriage contract. They know that there are problems in the
marriage/relationship but are not ready to leave. In fact, at this time they
often can’t leave because of COVID. However, the parties (or one of them) want
to have certain terms agreed upon going forward, including regarding the
children and property and financial issues. These issues can also include who
will get the home if the parties separate. Even such issues as division of
labour in the home can be put in a marriage contract.
The law is clear that parties
can negotiate a marriage contract or cohabitation agreement in the middle of a
marriage. Most people think that a “Pre-nup” (an American term) can be
negotiated only before marriage. However, this is not the case. In Ontario we
call these “marriage contracts,” or “cohabitation agreements” and they can be
made at any time during the marriage or cohabitation. A marriage contract can
provide a great comfort and security to the parties in this time of COVID. They
can be negotiated in many different ways. One positive way – if viable for the
parties – is through Mediation.
If you wish to explore the
possibility of negotiating a marriage contract during COVID, I can be reached
at (416) 368-0700, or anne@annefreed.com.
This concludes my blog. To
you all: Keep Safe!
Anne
Anne
Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of
Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training
in Mediation, Arbitration and Collaborative Practice, and
Certification in Collaborative Practice, as well as 38 years’ experience in the
practice of family law.
How has COVID affected people’s marriages and relationships, and if so, is there a viable solution?
The COVID crisis has forced us to live our lives inside our homes almost 24/7. The normal routine where spouses spend the workday in separate places has been shattered. Children do their schooling at home. Thus, the ability to ‘get away’ from one’s spouse and children has been sorely reduced if not eliminated. Today’s question is: Can marriages and relationships survive all this forced togetherness, and if so, how?
1. In ‘normal life,’ there are long marriages, good marriages, okay marriages, bad marriages and terrible marriages. By marriages, I am including common law relationships. For today I define a “good marriage” as one where the spouses are able to enjoy each other’s company, find space from each other even in the confines of the home, and most importantly they are able to face and handle conflict. By that I mean that the spouses are able to face conflicts when they arise, as is inevitable in relationships, and have the difficult conversations necessary to sustain a healthy relationship. Even these good marriages are being tested in this challenging time of COVID, and each party must put – in my view – extra energy and work into their relationship for it to continue to thrive.
2. Then there are the ‘okay’ marriages where, before COVID, the spouses were apart much more than they were together, with work, activities, get-togethers with friends and colleagues and so on, separating them through the week. Before COVID, this marriage worked because they could physically be away from each other most of the time. In these marriages, spouses often cannot deal with conflict and one or both sweep conflicts under the rug such that they become an insurmountable pit over time. These spouses stay together because of convenience, habit, common friends, because they like their way of life, etc. In this relationship, it’s probable that, because the spouses are now forced to be in close quarters with each other almost 24/7, their relationship is sorely tested. This is a relationship where, as COVID progresses and the shutdowns continue without a known end, the tension between the parties becomes thicker and thicker, with no resolution.
3. Number 3 is the bad marriage. This is a marriage where there was, prior to COVID, almost no connection between the parties, where they were like ships passing in the night (also previous). In this relationship, there is mental abuse and also, likely physical abuse by one party to the other. This situation is explosive and dangerous. It is a situation which is untenable and unsafe to remain in. There are many resources in the community for the spouse who is being abused. It is not in the realm of this article to discuss this extremely important topic.
There are remedies for spouses who are in situations 1 or 2 above. One remedy is that the parties can negotiate a marriage contract. They know that there are problems in the marriage/relationship but are not ready to leave. In fact, at this time they often can’t leave because of COVID. However, the parties (or one of them) want to have certain terms agreed upon going forward, including regarding the children and property and financial issues. These issues can also include who will get the home if the parties separate. Even such issues as division of labour in the home can be put in a marriage contract.
The law is clear that parties can negotiate a marriage contract or cohabitation agreement in the middle of a marriage. Most people think that a “Pre-nup” (an American term) can be negotiated only before marriage. However, this is not the case. In Ontario we call these “marriage contracts,” or “cohabitation agreements” and they can be made at any time during the marriage or cohabitation. A marriage contract can provide a measure of comfort and security to the parties in this time of COVID. They can be negotiated in many different ways. One positive way – if viable for the parties – is through Mediation. For more information on this, see my blog: ”Can People Negotiate a Prenup After they are Married, or is it Too Late; and, Using Mediation to Negotiate their Agreement.” (January, 2020). For information on the Mediation Process, see www.annefreed.com/six-process-options.
If you wish to explore the possibility of
negotiating a marriage contract during COVID, I can be reached at (416)
368-0700, or anne@annefreed.com.
This concludes my blog. To you all: Keep
Safe!
Anne
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, as well as 39 years experience in the practice of family law and mediation.
Welcome
to my – early spring! – Newsletter. My topic for today is on the movie “Marriage
Story,” and, is there a better way? Many of you have seen the movie on
Netflix. If not, I highly recommend it. This is a poignant drama about two
people – the husband played by Adam Driver and the wife played by Scarlett
Johansson – whose relationship has broken down and they have decided to separate.
They find themselves drawn into a system where their lawyers pit one against
the other in an adversarial process which, by its very nature, begins to
destroy the fragile bonds that the couple still share, the most important one
being their love for their young son and wanting to do what’s best for him.
In
the movie, the husband (“Adam”) retains a “reasonable” lawyer at first – played
wonderfully by Alan Alda. However, Adam is forced to fire him and retain a
“pit-bull lawyer,” so as to have an equal adversary to the scare tactics employed
by the wife’s lawyer – played by Laura Dern, who won an Oscar for her brilliant
portrayal of a pit-bull, charming, manipulative, adversarial lawyer who used
all the tricks in her toolbox to bring Adam down to level zero.
After
watching the movie, I reflected that, had the parties gone together to a first meeting
with one lawyer, the damage that ensued may well have been prevented.
I call
this process: ‘Early Neutral Evaluation – A Healthier Option.’ For this
process to be viable, the parties are at the early stages of their divorce and are
able to sit in the same room and have a certain modicum of respect for each
other. This process requires a certain type of lawyer , who is skilled in
negotiation and mediation, as well as being an expert in family law. The Laura
Dern lawyer would not fit that profile!
In early
neutral evaluation, I meet with the parties together. We have one meeting or several,
depending on what the parties want. I listen to each of their stories,
sometimes in separate rooms, and then together. It’s quite common that, when a
couple breaks up, each party has a different view of the ‘facts!’
I
ask the parties what their objectives are and what outcomes are most important
to them. When hearing their stories and objectives, I look for commonalities between
them. As a family law lawyer who’s practised for over 30 years, and who is now
focusing on mediation and collaborative practice, I’ve seen how parties often
demonstrate in the joint meetings the connections that were the good parts
of their relationship! I utilize those good communications to keep the lines of
communication open and help them find common ground. From that, I explain to
them the various processes they have available to them when they separate. These
options include ‘kitchen-table’ negotiation, mediation, med/arb, collaborative
law, arbitration and finally Court as a last resort. I’ve set out these various
options and a brief explanation of each, on my web site www.annefreed.com at www.annefreed.com/six-process-options.
After
explaining the various process options available to the parties, we turn to a
discussion of the law. I discuss with the parties the requirements necessary to
have a legally enforceable Separation Agreement and provide them information
about the legal issues.
At
the end of our meeting, the parties will have the information they need to be
able to go forward in their separation in a positive and collaborative manner.
They will not have spent huge sums – that they can’t afford! – as the parties
in “Marriage Story” did. They will not have undergone the terrible
emotional scarring that Adam and Scarlett suffered.
In “Marriage
Story’s” conclusion, the couple manages, against all the odds caused by bitter
war their lawyers have engaged in on their behalves, to come together on their most
important common ground – their love for their young son. As the end of the
film shows, it is from that common ground and not from the lengthy litigation war
that almost closed the door for them, that the parties begin to work together
in their decisions going forward.
I suggest
that people consider using early neutral evaluation, where appropriate, as a
healthier alternative. By this, the parties will not emerge afraid of the next
steps and emotionally depleted and scarred, but rather ready to engage, in a
much healthier way, in the hard legal and emotional work of separating in a
manner that’s best for them, and most importantly for their children.
Please
feel free to contact me if you are interested in exploring this healthier
alternative.
Until
next time!
Anne
Anne Freed holds a BA (Honours Sociology),
JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative
Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and
Collaborative Practice, and Certification in Collaborative Practice, as well as
38 years experience in the practice of family law.
Firstly, Happy New Year! Today’s topic is: Can people negotiate a “pre-nup“ (in Canada it’s called a “Marriage Contract”) or a cohabitation agreement after they’re married or living together, or does it have to be done prior to their marriage date or cohabitation date? The answer is Yes! It will surprise many of you that indeed this can be done post-marriage! To illustrate, I had a case where the party came to see me a few weeks before her marriage, requiring a Marriage Contract to be completed before the wedding date. Everyone “pushed the pedal to the metal” to get this done prior to the marriage. Needless to say, due to the very short time frame, it was extremely stressful for all – including me! The parties ultimately agreed to my recommendation that they postpone the finalizing of the marriage contract until after the wedding. That way they were able to focus on preparing for and enjoying their special day, without the added stress of negotiating a Marriage Contract before their wedding.
As I told my client, a possible downside was that, once parties are married, the incentive to negotiate a marriage contract is lessened. Often it is one party – for example Joe (real names not used here) – who has the income, assets, and perhaps children of a previous relationship – who wants the Marriage Contract more than the other party – Sally. Once the parties are married, Joe can no longer say to Sally: “We can’t marry unless you sign this marriage contract!”
My client insisted to me that she and her fiancé had complete trust in each other and that therefore this would not be an issue for them.
Indeed, there can be benefits to doing a Marriage Contract after the wedding date. In the above example, Joe saying to Sally: “I will only marry you if you sign this marriage contract” – could be construed (at a later date) as getting Sally to sign under pressure. This could be a factor in Sally, at a later date, potentially setting aside the Marriage Contract, which is what Joe doesn’t want!
I had a client who came to see me 14 years after the parties had married, as his wife wanted an Agreement and he was fine with doing it. It was important that I handled his case with great sensitivity and diplomacy, due to the sensitive nature of the circumstances and so as to not interrupt a perfectly fine long-term marriage!
So what’s a good way to negotiate a marriage contract? Mediation can be an excellent process for parties to negotiate their Marriage Contract, whether before or after the marriage. The same applies to negotiating Cohabitation Agreements. When I mediate these Agreements, I am sensitive to the often delicate situation, and employ the mediation skills of reframing, active listening, and empathy, while also dealing with the hard legal issues.
Mediation provides a positive forum which can fulfill both these aspects. This process allows the parties to negotiate a solid and binding Agreement and continue their happy married lives together, with the knowledge that, just in case – given the realities of life today – they each have a protection should things not go as planned.
As always, please feel free to pass my article on to friends or colleagues who are considering taking the big step of marriage or cohabitation, or to those already married and interested in negotiating a Marriage Contract. I’m happy to discuss my mediation services with them.
Until next time!
Anne
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice
