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.
Lisa O’Neill