Lana Li
Tuesday, June 8th, 2010    Posted by Lana Li (posts)

According to Statistics Canada, divorce is on the decline but for those who are divorcing, nearly three-quarters of them are using lawyers to help them resolve their marital issues.  In B.C. there were nearly 21,000 active divorce cases in 2008/2009 but only 16% had a statement of defence on file.  This means that only 16% of the active divorce files were litigious or specifically, the other spouse did not agree to the proposed resolution of the marital issues.  However, of those active divorce files in B.C., only 2% of them actually proceeded to a trial in 2008/2009.

Lawyers often act as negotiators or mediators to assist clients with resolving the division of assets, custody of children, access to child, spousal and child support.  Once settled, the agreement is documented in a Separation Agreement, signed by the divorcing couple.  When they get around to filing for a divorce, that is all they will ask for as all other issues have been resolved.  They will obtain an undefended Divorce Order only.  Hence, the low percentage of active divorce files with a statement of defence.

It is usually more cost effective to employ lawyers to assist in resolving the claims of the couple, rather than employing lawyers to litigate the resolution of the issues through the court system.  The cost of a trial is quite high and couples will have no choice but to use their family assets and resources to pay for their lawyers.  Those resources can be better spent on trying to find ways to resolve differences rather than a “win at all costs” approach in an adversarial court system.

Lawyers can also recommend other third parties who may assist the parties in some of their issues, such as business valuators, child psychologists, and family law mediators.

Further, the use of lawyers shortly after separation will assist the couple in planning how to manage their financial situation (and avoid risks) pending resolution.

Therefore, divorcing couples should give consideration to contacting a lawyer to obtain independent legal advice immediately after separation.  In many cases, hiring lawyers to work towards a negotiated settlement will result in an earlier settlement and savings of costs in the court system.  From the Statistics Canada data from 2008/2009, it appears that divorcing couples are already aware of the benefits of hiring lawyers at an early stage.

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