HOW CAN I NEGOTIATE A PROPERTY SETTLEMENT WITHOUT GOING TO COURT?
10 Apr 2012
Very few matters are resolved by Courts at a trial. Most matters settle without the court’s involvement. Before you negotiate a settlement it is important to understand the underlying legal principles that would be applied by a Court. The Court will apply a four step process when determining how the property of a marriage will be divided:
(a) Establishing the matrimonial pool
(b) Assessing the contributions of each of the parties to that pool
(c) Making adjustments for future factors
(d) Making an assessment on the basis of justice and equity
Once you have a realistic understanding of your entitlements you will be in a better position to try to resolve matters. You should therefore seek legal advice even if you wish to resolve things between yourselves.
Lawyers often refer to the resolution of disputes outside the Court process as alternative dispute resolution. There are many methods of resolving disputes however, in family matters there are 4 main ones. They are negotiation between the spouses, negotiation between lawyers, mediation and collaborative law.
Negotiation between spouses is sometimes called kitchen table negotiation. Once spouses reach an agreement they can seek the assistance of separate lawyers to draw up the terms of the agreement to ensure that the agreement is binding. Lawyers also use negotiation to resolve matters. This can be through the exchange of letters or in a round table conference. Once agreement is reached an agreement can be drawn up to reflect the terms.
Mediation is a technique where a neutral third party who may be a lawyer or social scientist meets with the separated spouses to assist them to reach an agreement. This may occur over one or more meetings.
Collaborative Law is a structured negotiation technique where the spouses and lawyers sign an agreement that they will resolve the dispute without going to Court. They may use other experts like accountants or social scientists to work with the family in finding a solution to the dispute. If they cannot reach an agreement the spouses cannot continue to use the same lawyers and must restart negotiations with new advisors.
There are many benefits in reaching an agreement without going to Court. Research has found that spouses are more likely to stick to an agreement that they have negotiated rather than one that is imposed upon them by a Court. In the long run separated spouses have better relationships when they resolve matters amicably. You should talk to a lawyer about which method of dispute resolution is appropriate for your family.