What is the best that a bad situation can be? Well, the answer can be summed up in two words: uncontested divorce. An uncontested divorce occurs when both spouses agree that the marriage is going to come to an end, and they can come to a mutually satisfying settlement agreement.
Even if you are not happy that your spouse wants out, recognizing that you cannot control someone else and acting with maturity can make the process way less painful for you. Similarly, you can engage in a joint divorce. The difference is that in an uncontested divorce, you serve your spouse with a divorce application and your spouse does not contest or raise any issues regarding the divorce. Alternatively, in a joint divorce, you do not initiate any action against each other. Rather, both spouses inform the court of their intention to divorce through the same application.
To give more context, when you are going through a divorce, there doesn’t need to be a high degree of conflict, court dates and sky high legal fees. Sometimes both parties can agree that the relationship has run its course and sit down with a mind to work together to create a fair settlement agreement.
This type of approach has several benefits. Firstly, it is much cheaper to reach a resolution without the use of the courts, and you can do so on your time. Courts are busy, and therefore proceedings can often be drawn out over months or years. You appear when there is availability in the court’s schedule. Your lawyer may come out of the contentious divorce with a new car, but you will likely come out of it with a beat-up heart and a lighter wallet.
Furthermore, uncontested divorces keep more power in the hands of the spouses, rather than a judge. When you are simply negotiating between yourselves, decisions surrounding custody of the children, division of assets and possession of the marital home ultimately rest with you, rather than a stranger. This leads to the third benefit – the children are not caught in the middle. When there is a high conflict, drawn out divorce, then ultimately your children suffer as well. However, if you are negotiating schedules with your ex in a constructive way, the lines of communication stay open and you can co-parent your children more effectively. Furthermore, the interests of your children may be better reflected in a custody agreement than a court order since you know your children best.
The final benefit worth mentioning in settlement prior to litigation is that the matter remains private. Issues that proceed to trial become a matter of public record, which means your friends, kids and coworkers can have access to details of your life that you may prefer to remain private.
It is generally recommended to have your separation agreement drafted by a lawyer, though this is not a rule and will not inherently impact the contract’s enforceability. It is simply a good idea to ensure that the document is complete and clearly written to avoid costly litigation in the future. Look online for further information about the requirements for a valid separation agreement in Ontario.