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  • Nathan Fradley

FAQ: We are getting a divorce; do we have to go to court?

Updated: Jun 25

Intended audience: Someone considering or commencing a separation.



Woman considering court

A common, but misunderstood association with divorce is that the court tells you how to split up what assets. The reality is that the majority of divorces are settled by mutual agreement and consent orders and not by involving the court in the final decision.


In this article I will explain how the two options differ.


Agreement-Based Asset Division

In an ideal world, all separations would be handled amicably through agreements. There are two main types of agreement-based asset divisions: mediation is the most common, with collaborative divorce an increasing trend.


Mediation

  • Mediation involves a neutral third party who helps you and your partner reach a mutual agreement on dividing your assets.

  • Mediators are specifically trained professionals, who are experts in dispute resolution and remaining impartial.

  • Pros:

    • More Cost-Effective: Mediation is usually less expensive than going to court.

    • Faster Resolution: Agreements can be reached more quickly than long back and forths, and waiting for a court date

    • Maintains Relationships: Keeping things amicable can help maintain a better relationship post-separation, which is especially important if you have children and will be coparenting.

  • Cons:

    • Requires Cooperation: Both parties need to be willing to negotiate and compromise.

    • Asymmetric knowledge: In most cases I am involved in, one party usually managed the finances, and is more informed. This can lead to misunderstandings, and potentially misaligned outcomes.


Collaborative Divorce

  • Collaborative divorce involves a team approach where both parties have their own lawyer, as well as neutral Financial and Psychological professionals in the room.

  • Pros:

    • Holistic Support: You get comprehensive support from a team of professionals, with their own insights and expertise.

    • Amicable Process: Aims to keep things friendly and cooperative, and with multiple experts in the room, on the spot resolution can be easier. This can neutralise bias or asymmetric knowledge.  

  • Cons:

    • Higher Costs: This process can be much more expensive than standard mediation, due to the involvement of more professionals and additional work.

    • Requires Cooperation: Ultimately you still need to be able to negotiate and cooperate in good faith.



Court-Ordered Asset Division

Sometimes, reaching an agreement through mediation or collaboration isn’t possible. In such cases, a court order may be necessary.

  • What It Is: A court order involves a judge making the final decision on how your assets and custody of children (where applicable) will be divided.

  • Pros:

    • Impartial Decision: A judge makes the decision, which can be helpful if you and your partner cannot agree, or you feel wronged by what has been proposed in mediation.

    • Enforceable: The court’s decision is legally binding and enforceable.

  • Cons:

    • Expensive: Litigation is expensive, no matter the topic, and for good reason. You are involving often several experts to understand and argue for your situation, as is your former partner. Due diligence in this process is paramount, so if you are considering litigation, ensure you do it properly.

    • Time-Consuming: Court cases can take a long time to resolve.

    • Emotional Strain: The adversarial nature of court proceedings can increase stress and strain relationships further.


There is no right or wrong in the above options as every situation is different.

A comfortable and amicable, fast mediation process is obviously most desirable. It protects your wealth, mindset and relationship post separation - but that is also not always an available or viable solution.


Investing in other Professionals

Even if you do not choose to go down the Collaborative path, bringing in additional financial and psychological assistance a great investment for both parties, and in a lot of cases pays for itself in faster turn around time, better communication and a stronger relationship post divorce.


Financial Advisers Help By

  • Bridging the Knowledge Gap which reduces stress and mistrust through providing greater understanding and confidence in the current situation.

  • Understanding long term implications, be that what percentage asset split you should fight for, or which specific assets you may want to keep (such as the family home)

  • Helping you find your Why: through more aspirational conversations that give both context to current decisions, and the light at the end of the tunnel.


Psychologists help by

  • Personal Values: Understanding your own needs, values and decision making processes.

  • Strengthening empathy: Understanding your partners, values and decision making processes.

  • Communication skills: which can both help you navigate the divorce, but not burn down the relationship at the end of it. Where you have children, this can be invaluable long term when co-parenting.


In Closing

Any breakup is hard, but with a greater understanding of your options you can approach your separation opens your discussion and leads to you a path that best suits your situation.

You're not alone in this process, and with the right Family lawyer and supportive team around you, you can find your way through and thrive on the other side.



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