A common first question when approaching a family law lawyer regarding your separation, custody and access issues is whether you should proceed by way of a separation agreement or court action. Both have pros and cons, and both can lead to a successful outcome if it fits your family.
A separation agreement is a document that is negotiated either between the parties, or between counsel and does not involve a judge or court room. The document is drafted using the parties input and wishes, and can encompass all issues regarding the marriage breakdown. This agreement can be as unique as the family, and include clauses to reflect the realities of the family. The greatest pro of this if, done right, it can save the family significant money and a protracted fight in court, and be more customizable to the family it’s about, there is much more freedom to draft your agreement as you wish. But, a separation agreement can be made only by both parties consenting to each paragraph, so if the parties cannot agree, a separation agreement cannot happen. Practically, this can mean days or weeks of negotiation, only for negotiations to fail and a court proceeding must be brought to have the issues settled.
A court action is commenced by issuing court documents, your spouse responding, and proceeding to be in front of a judge for conferences, motions, and eventually a trial. This approach allows a neutral third party, a judge, to make a decision based upon evidence, submissions, and the law, and to craft an Order the parties must abide by. The court process can take multiple years to finish, and can be very costly to litigants. But, when one or both parties cannot agree, it puts the decision making into the hands of a judge well versed in the law to decide for them may be the only option. While this can be a stark contrast between a separation agreement, due to the longevity of a court case, there is ample opportunity for counsel to negotiate and come to a settlement that is made into a court order on consent of both parties. But, if the decision is left to a judge, your family’s future including custody and access to your children as well as how to deal with your property is decided by a judge who does not know you or your family.
By retaining a lawyer, they will be able to properly assess which route is best for you based on your family dynamics, and the viability of negotiation based on each parties starting points on all substantive issues in your case. They use their expertise to help you make a choice with which path will be the most cost and time effective for you. At the end of the day, your family law lawyer wants to ensure you are content with the process, and it sets your family up for a good outcome.
