Schwarzenegger Settlement: Terminating Expensive Litigation

It seems the long sad story of the breakdown of the marriage of Arnold Schwarzenegger and Maria Shriver appears to be finally winding down. Many individuals have been expecting the pair's divorce to be bitterly fought, as they had no pre-nuptial agreement. This seems not be the case; and Arnold and Maria appear to be attempting to distribute their property in a settlement; rather than litigating issues in the court.

If the couple lived in Ontario, this would be done using a separation agreement. A separation agreement allows a couple to settle their issues in a contract, section 54 of the Family Law Act states the things couple can contract to:

54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children;
(d) the right to custody of and access to their children; and
(e) any other matter in the settlement of their affairs.

Individuals might draft a separation agreement through negotiations, mediation, arbitration or the collaborative family law process. Fighting family law issues in court is an expensive and very long process. Much of the family law system in Ontario is in fact designed to encourage settlement between the parties. Every couple must attend a case conference before a trial or motion in which a judge will canvas the issues and give them information on ways to settle their issues, and there are cost penalties to litigants who ignore reasonable offers to settle and subsequently fail in litigation. Using a separation agreement is usually in the best interest of both parties. Many of those who become embroiled in litigation often wish they could go back in time and avoid the whole mess through a settlement.