How To Claim Extracurricular Expenses As Part Of Child Support
Extracurricular activities are a great way to keep children engaged and provide an avenue for them to explore and discover their passions while having fun, even though their costs can vary widely.
Every parent have flowing responsibilities to support their children in every way irrespective of the status of their marital relationship. So as a parent, you have the opportunity to support your child to make the best choice of extracurricular activities based on their strengths and passion.
In the event of a marital breakdown, it can be a big challenge for you as a parent if your child chooses extracurricular activities with a high price tag, especially when the total cost is in excess of the amounts estimated in the child support obligation.
Not forgetting that the general well-being of the children must continue to be treated on a balanced scale and if necessary, with legal sanction after marital separation, the law requires the separating parents to make financial arrangement to cover every reasonable and genuine expenses for the children of the marriage.
Money spent on a child’s extracurricular activities is clearly a reasonable and genuine expense made towards the well-being of the child.
So as a custodial parent, you can seek to have the child support obligation modified to include your child’s extracurricular expenses as extraordinary expenses.
The challenge is that it is difficult sometimes to determine if an expense like the cost of extracurricular activities could be classified as extraordinary expense for child support purposes. An experienced family lawyer can file a motion to modify the child support obligation with a court.
The Court’s usual approach to solving this challenge is by considering the following factors to determine what expenses can be categorized as special and extraordinary expenses:
- need
- reasonableness
- types of extraordinary expenses incurred by the parents before the separation
Before discussing how to claim your child/children’s extracurricular activities under extraordinary expenses, here’s Canada’s official/legal definition of Extraordinary Expenses.
What is “Extraordinary Expenses”?
(1.1) For the purposes of paragraphs (1)(d) and (f) below, the term extraordinary expenses means:
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the Court has determined that the table amount is inappropriate, the amount that the Court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the Court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the Court has determined that the table amount is inappropriate, the amount that the Court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the Court considers relevant.
Determining Special or Extraordinary Expenses
Under section 7 of the Federal Child Support Guidelines, the Court has a wide range of discretion to declare certain expenses as special and extraordinary expenses by considering the children’s best interest.
Extraordinary expenses can be school expenses such as paid tuition amount and other fees required for enrollment or attendance at an eligible institution. A precondition for enrollment may also be regarded as claimable school or educational expenses. For example, if a computer is a precondition for enrollment or admission, such will be considered as claimable educational expense.
Sometimes extracurricular activities do not form part of the core school syllabus, and are optional, yet still educational and informing. Such activities can include debating clubs, musicals activities, arts and sports.
Special or extraordinary expenses are determined according to Section 7 of the Federal Child Support Guidelines, which is as follows:
7 (1) In a child support order, the Court may on either spouse’s request provide for an amount to cover all or any portion of the following expenses (which may be estimated), taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment
(b) the portion of the medical and dental insurance premiums attributable to the child
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counseling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs
(e) expenses for post-secondary education
(f) extraordinary expenses for extracurricular activities
Sharing of Expense
(2) The guiding principle in determining an expense amount (referred to in subsection (1) above) is that the spouses share the expense in proportion to their respective incomes after deducting from the expense any contribution from the child.
Subsidies, Tax Deductions, etc.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the Court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
Universal Child Care Benefit
(4) In determining the amount of an expense referred to in subsection (1), the Court shall not take into account any universal child care benefit or any eligibility to claim that benefit.
Note that Alberta Child Support Guidelines apply if you start your claim under the Family Law Act of Alberta.
A parent or a legal guardian of a child can initiate Child Support and Expense Claim before a court of competent jurisdiction in Alberta under the Divorce Act of Canada or Family Law Act of Alberta. The child himself, or any person with the permission of the Court can also initiate the claim.
For legal advice and representation in family law matters, we recommend you consult an Alberta family lawyer. A family lawyer can bring or defend a special and extraordinary expense claim on your behalf, and make submissions to the Court. Contact us for more information on what a family lawyer can do for you.
Satish offers professional legal advice and experience drawn from a multicultural background. He has spent his years in practice supporting clients through their family law, business law, real estate law, immigration law and wills and estates matters. He is able to find innovative solutions for his clients thanks to his rich, diverse background, which allows him to examine clients’ legal problems from a variety of different perspectives.
Know Your Mobility Rights: Custody Parent Moving With A Child
Mobility rights is a fairly common and unpredictable area of Family Law. It is unpredictable because the court can decide either way based on just one consideration.
After separation, a parent may wish to relocate for a number of reasons including employment opportunities, new relationship or to be close to the extended family.
The courts cannot stop a parent from relocating. However, if the move would excessively limit access or custody right of the other parent, this parent can take the matter to court. The court may end up preventing the custody parent from leaving the jurisdiction with the child or children.
The Only Consideration For A Parent’s Custody Mobility Rights
The Divorce Act makes it clear that the “best interests of the child are the only consideration to be taken into account in making orders concerning children”. In such cases the important question is “what is in the best interests of the children in the given circumstances?”.
How To Know What’s In The Best Interest Of A Child
The court must consider the following factors to make a decision whether a parent should be allowed to relocate with a child:
1. The importance of the child remaining with the custodial parent
2. Keeping contact with access parent
3. The views of the child
4. The degree of disruption to the child’s life as a result of removal from current family, schools and the community
2 Exemplary Cases Of Custodial Mobility Rights In Canada
1. Case of Gordon v. Goertz, [1996]
This has become the binding authority on related cases. Here, the mother wanted to relocate to Australia to study Orthodontics. The father opposed the move stating it would limit his access to the child.
The court first had to determine the “material change in circumstances affecting the child”. Upon establishing the material change in circumstances, the next stage is determining if it is in the “best interests of the child”.
In this case, the court allowed the mother to leave Canada with the child, while the father got order for visitations in Canada and Australia.
2. Case of Mam v. Wem, [2019]
In a recent case Mam v Wem, [2019], the Court had to determine whether it was in the best interest of the 15 year old daughter to temporarily relocate to China with her mother. The two older children of the marriage were also dependent and moving to China with their mother.
The position of the mother was that she had previously taught in Korea and she was familiar with the living conditions in china. She claimed that educational needs of her children can be satisfied by earning a decent living in China. Further, she believed the children will greatly benefit from new cultural experience.
In the end, the court denied the mother’s application for a temporary relocation after determining that it was not in the best interests of the children.
Since each case has it’s own unique peculiarities and circumstances, the outcome of your mobility rights case could go either way in the event that the other parent takes the issue to court.
It is important to get competent family legal advice to ensure that the best interests of all parties are protected if you are planning to custody parent planning to move with your child or children.
Satish offers professional legal advice and experience drawn from a multicultural background. He has spent his years in practice supporting clients through their family law, business law, real estate law, immigration law and wills and estates matters. He is able to find innovative solutions for his clients thanks to his rich, diverse background, which allows him to examine clients’ legal problems from a variety of different perspectives.
Want A Prenup? The 5 Important Factors To Consider
While marriage itself is a contract, a couple can decide to write the contract themselves instead of accepting the default contract written by government legislators.
A Marriage Contract or Prenup or Prenuptial Agreement is a type of domestic contract where you and your spouse write out how you deal with issues while you are married or at the end of your marriage if your relationship breaks down and you decide to separate.
As such, a prenuptial agreement is a legally binding document and has increased in popularity due to the security it offers married couples if they ever have to go through divorce, especially where it has to do with property issues and spousal support.
Some Limitations of Prenuptial Agreement
- A marriage contract or prenuptial agreement cannot say who gets custody or access to any children if you separate. This is because decisions about children must be made based on what is in the best interests of the child at the time of divorce or separation.
- A marriage contract also cannot change each partner’s equal right to live in the home after they separate.
The 5 Important Rules of an Effective Prenuptial Agreement
While couples usually create a marriage contract to satisfy both parties’ needs and secure their individual rights, even the most comprehensive marriage contract can be challenged in court if a couple neglects any of these important factors in the course of creating the marriage contract.
The court will review a marriage contract and may nullify it if any of the following factors are not accounted for in the contract:
1. Full Disclosure of Assets
It is compulsory that both parties fully disclose their assets and debts to ensure that the contract terms are written based on an informed decision.
2. Independent Legal Advice
Both parties need to completely understand the contract since the parties will be giving up certain rights by signing the contract. It is important for both parties to obtain Independent Legal Advice to guide their decisions.
3. Presence of a witness
The prenuptial agreement must be executed by both parties before a witness.
4. No coercion or duress
The parties must enter into the contract freely and without any coercion or duress.
5. Force Majeure
Although a prenuptial agreement is considered legally binding, not all terms of the contract may hold up in court over time due to changes in circumstance, especially when when the change in circumstance involves children. In such cases the court will decide in the best interest of the child(ren), and this may require changes or nullification of the prenuptial agreement altogether.
Conclusion
Prenuptial agreement is a popular option among couples who want the flexibility of creating their own custom marriage contract. The rules covered in this article are all important. Overlooking or violating any of them can invalidate your prenuptial agreement.
Whether you are considering signing a prenuptial agreement or you are going through separation/divorce and need legal guidance, Narang Law has the expertise to provide you with the best legal advice backed by many years of experience in family law practice. Contact us today to move your case forward.
Satish offers professional legal advice and experience drawn from a multicultural background. He has spent his years in practice supporting clients through their family law, business law, real estate law, immigration law and wills and estates matters. He is able to find innovative solutions for his clients thanks to his rich, diverse background, which allows him to examine clients’ legal problems from a variety of different perspectives.
The Truth About Financial Disclosure During Divorce or Separation
Debt disclosure during divorce or separation - Family Law Of Canada
Duty To Disclose Debt And Other Financial Information During Divorce Or Separation
The parties involved in a separation or divorce are under obligation to fully disclose all debts, assets, any joint accounts and information about Private Corporation.
This may not be an enjoyable task but a duty to disclose financial information is the fundamental requirement in family law.
In order to properly negotiate or litigate family law cases, the parties must have accurate financial information about each other. This will lead to fruitful discussions about any financial issues and ensure a fair outcome between the parties.
Financial Disclosure During Divorce or Separation Involving Children
The obligation to disclose all financial information is also predominantly important when there is a child involved. Parents’ separation should not neglect the child and the child should be able to enjoy the same benefits and lifestyle that he/she had while both parents were together.
Disclosure becomes essential to determine the party’s financial situation and their ability to pay child support.
Non-disclosure of financial information can increase the time and expense of litigation and deprive the entitled party of their share.
Deliberately Hiding Assets, Income Or Debt During Divorce Or Separation
The consequences can be severe in a situation where one spouse deliberately hides assets or income.
A recent case Skoronski v. Hage, 2017 ABPC 153, establishes that the obligation to disclose is the responsibility of parents and their counsel. In this case, the respondent father was a beneficiary to a family trust. He refused to disclose full information about the family trust and claimed that he had no control over the trust.
Further, the Respondent’s counsel advised that he had a chance to review the information and his client had no control over the trust. However, the father, in fact, was the beneficiary of the trust. Consequently, the court dismissed the father’s appeal and awarded costs against the father and his counsel for delaying the disclosure process.
Evidently, the court can draw an adverse inference where parties deliberately hindered the financial disclosure process.
Narang Law can provide you expert legal advice backed by many years of experience to help you navigate the difficult process of divorce or separation. Contact us today to move your case forward.
Satish offers professional legal advice and experience drawn from a multicultural background. He has spent his years in practice supporting clients through their family law, business law, real estate law, immigration law and wills and estates matters. He is able to find innovative solutions for his clients thanks to his rich, diverse background, which allows him to examine clients’ legal problems from a variety of different perspectives.
How To Achieve Equitable Foreign Matrimonial Property Division
In recent times, it is has become common that many Canadian residents own foreign properties outside of their residential province. This new trend can be attributed to the increase of immigrant society in Canada and the ease of doing business around the world today.
Consider Existing Precedents of Equitable Matrimonial Property Division
During divorce proceedings and matrimonial property division in Alberta, if one or both spouses own properties outside of Alberta or even in another country, there is a clear path to achieving a fair and equitable matrimonial property division as per Matrimonial Property Act of Alberta (the Act).
In previous years, a spouse who didn’t own foreign property had no solution to bring other spouse’s foreign property into consideration during matrimonial property division in Alberta. In case Duke v. Andler (1932) S.C.R. 734, the Supreme Court of Canada declared that Canadian courts do not have jurisdiction over foreign properties and land.
However, the law has changed significantly in recent times. Canadian courts now have jurisdiction to deal with foreign properties during the division of matrimonial property upon break down of a marriage.
Section 31 of the Matrimonial Property Act of Alberta requires that each spouse shall file a statement with the Court and serve on the other spouse a statement, verified by oath, disclosing particulars of all the property of that spouse, whether it is situated in Alberta, or elsewhere.
Specifically, section 31 of the Matrimonial Property Act of Alberta states:
Disclosure of property by spouses –
31(1) If an application has been commenced under Part 1, each spouse shall file with the Court and serve on the other spouse a statement, verified by oath, disclosing particulars of all the property of that spouse, whether it is situated in Alberta, or elsewhere.
(2) A statement made under subsection (1) shall include particulars of property disposed of by that spouse within one year before the application was commenced.
(3) A statement made under subsection (1) shall
(a) be in the form, and
(b) contain the information,
prescribed by the regulations.
In case, Chikonyora v. Chikonyora 2013 ABCA 320, the Alberta Court of Appeal declared that there is a statutory obligation on each spouse to disclose all particulars of all their property whether situated in Alberta or not.
Matrimonial Property Division Involving Rental Income From A Foreign Owned Property
If your spouse is earning rental income from a foreign-owned property, the court has authority to take that fact into consideration when determining how to divide the property.
Why? By virtue of section 7(3) and 8(d) of the Act, a court is directed to take into consideration “the income, earning capacity, liabilities, obligations, property, and other financial resources” of each spouse both at the time of marriage and time of trial when making a property division.
It is worth noting here that if the court has jurisdiction “In Personam” over the spouse owning foreign property, the court can grant an order directing that spouse to take steps regarding the foreign property.
The court has a second option to grant a compensation order in which the court can direct the spouse owning foreign to pay monies as compensation to the other spouse due to having an interest in the foreign property.
However, the Alberta court does not have jurisdiction “In Rem” to make orders regarding foreign property because the foreign property is located in the foreign jurisdiction under the laws of the foreign country. The court does not have authority to grant an order regarding the foreign property.
In the case of Boodnarine Nauth v. Sheila Bijai 2017 ONSC 2022, the Superior Court of Justice of Ontario discussed jurisdiction issues as declared by Ontario Court of Appeal in Catania v. Giannattasio: “the general rule is that Canadian courts have no jurisdiction to determine title to or an interest in a foreign land”.
A limited in personam jurisdiction over foreign property may apply provided that four prerequisites are satisfied:
1. The court must have in personam jurisdiction over the defendant. The plaintiff must accordingly be able to serve the defendant with the originating process, or the defendant must submit to the jurisdiction of the court.
2. There must be some personal obligation running between the parties. The jurisdiction cannot be exercised against strangers to the obligation unless they have become personally affected by it.
3. The jurisdiction cannot be exercised if the local court cannot supervise the execution of the judgment…
4. The court will not exercise jurisdiction if the order would be of no effect in the situs. The mere fact, however, that the lex situs would not recognize the personal obligation upon which jurisdiction is based will not be a bar to the granting of the order.”
Conclusion
Under Section 7 (3) and Section 8 of the Act, an Alberta court has the power to do the unequal division of the property situated in Alberta to compensate for the foreign property of one spouse in order to make a fair and equitable division of matrimonial property.
For example, if a matrimonial home situated in Alberta has $550,000.00 fair market value and the other spouse has sole ownership of foreign property for the fair market value of $600,000.00, the court has the power to transfer matrimonial home situated in Alberta to the spouse who does not have control and ownership of foreign property. The court can order the foreign property owner spouse to pay remaining money over a period of time with or without interest as per section 9 (3) of the Act.
This means that if your spouse owns a foreign property during your divorce, it is appropriate to request an order for unequal division of matrimonial property situated in Alberta for which Alberta court has authority to consider.
section 9(1) of the Act authorizes Alberta courts to distribute property situated in Alberta in a manner that equalizes the foreign-held assets of one or both of the spouses.
Section 9(1) provides:
9(1) If part of the property of the spouses is situated in Alberta and part elsewhere, the Court may distribute the property situated in Alberta in such a way as to give effect to the distribution under section 7 of all the property wherever it is situated.
It goes without saying that a court would require disclosure for property located outside the province of Alberta in order to discharge this function properly.
For more advice and guidance with your divorce process and division of matrimonial property, contact Narang Law today. We’ve helped hundreds of clients navigate the divorce process with sound legal assistance in Calgary and surrounding areas.
Satish offers professional legal advice and experience drawn from a multicultural background. He has spent his years in practice supporting clients through their family law, business law, real estate law, immigration law and wills and estates matters. He is able to find innovative solutions for his clients thanks to his rich, diverse background, which allows him to examine clients’ legal problems from a variety of different perspectives.
How To Calculate Child Support Payment For Self-Employed Parent
Calculate Child Support When Self-Employed - Calgary Family Lawyer - www.sknlaw.ca
Generally, the employment income of the payor parent determines child support payment amount. The Federal Child Support Guidelines Table for divorce cases filed under the Divorce Act of Canada outlines the amounts based on payor parent’s income. Also the Alberta Child Support Guidelines covers family law cases filed as per Family Law Act of Alberta.
Child Support Payment for An Employee Payor Parent
If the payor parent is an employee, the income on line 150 of their income tax return is used to determine child support payment. In this case, the Federal or Alberta Guidelines Table outlines the child support payment amount according to the number of children of the parties.
How To Calculate Total Income Of A Self-Employed Payor Parent
It is more challenging to calculate income for child support payment purposes when a payor parent is self-employed. There are some court considerations that can make the income amount stated on line 150 of a payor parent’s tax return inaccurate. In majority of such cases, the line 150 income amount is no longer accurate in showing how much is available to pay child support.
During a divorce that involves self-employed parties, the divorcing parties have to decide how to divide their business. In making this decision, the parties require a thorough evaluation of their business.
The Court Decides Reasonable Business Expenses
Generally, the Income Tax Laws of Canada permits deduction of business expenses from a person’s total income.
However, the court may not accept all business expenses deducted in a tax return as reasonable and proper deduction from total income in determining child support payment.
Fort this reason, it is the duty of a self-employed payor parent to provide full financial disclosure to other parent. This means the payor parent bears the burden of proof – to show that business expenses deducted in the tax return are reasonable and proper for child support payment purposes.
For calculation of income for child support payment purposes, a business expense could be considered unreasonable even though it is is permitted under the Income Tax Act.
A payor parent receives benefits from deducting their expense from total income. The court will look into these various benefits and review whether the expense was for the payor parent’s personal benefit and use. Vehicle, cell-phone, travel, and entertainment expenses are some of such expenses that fall under this category.
The court has the power to add back unreasonable expenses the self-employed payor parent claimed to their total personal income.
Burden Of Proof For Self-Employed Payor
There have been real cases where the court impute payor parent’s income by adding back deducted expenses. For example, the Court of Appeal in Alberta recently granted an order in Cunningham v. Seveny, 2017 ABCA 4, for the same reasons discussed in this article. The court deemed some of the claimed expenses were for the personal benefit of the payor parent.
Therefore, it is in the best interest of a self-employed payor parent to provide proper financial disclosure. This includes, but not limited to, explanations of expenses, benefits, management fee, and salaries. Otherwise, the court can take adverse action by presuming that the self-employed payor parent did not provide proper evidence because it was against his own case.
Start With Guideline Income
A professional accountant’s opinion can be useful for proper review of financial statements of the self-employed payor parent’s business. The accountant will help find out the correct “guideline income” to calculate monthly child support payments.
Spousal Support Payment Income Calculation
A party seeking an order for spousal support can use the same method discusses above to calculate a payor spouse’s income.
For legal advice and representation in child support related matters, we recommend you consult an Alberta family lawyer. A family lawyer can bring or defend a child support claim on your behalf, and make submissions to the court. Contact us for more information on what a family lawyer can do for you.
Satish offers professional legal advice and experience drawn from a multicultural background. He has spent his years in practice supporting clients through their family law, business law, real estate law, immigration law and wills and estates matters. He is able to find innovative solutions for his clients thanks to his rich, diverse background, which allows him to examine clients’ legal problems from a variety of different perspectives.
Matrimonial Property Division – Parental Gift or Loan
matrimonial property division - Calgary Divorce Lawyer - www.sknlaw.ca
Assume A Common Scenario
A young couple is about to marry. The parents of couple are happy and ready to support the couple to start their new life together. At time of marriage, the bride or groom receives money from the parents of one of them or both of them. In this type of situation, there is no documentation of transfer of funds because it is a gift from proud parents. After marriage, the couple starts living together as husband and wife. After few years of marriage, the husband and wife are having differences and they decide to proceed with divorce and matrimonial property division which is not pleasant for them.
At the time of matrimonial property division, the husband and wife may be in complete disagreement in regards parents’ monetary advances. The issue is whether the parents gave the money with the expectation of repayment and whether they intended the money for one or both parties in the marriage.
The memories are not clear and the husband and wife are not in good terms due to the split. Each of them is interested in using the monetary gift for self-serving purposes.
Parental Gift or Loan?
It is important to note that gift and loan are treated very differently under Matrimonial Property Act of Alberta.
In divorce proceedings or an ADR Process , it has to be determined whether the parent’s money was a loan or gift. Parental loans and gifts are subject to specific legislated rules.
In determining each spouse’s net matrimonial property portion, parental monetary gifts will be counted as debt if the monies were a loan to both spouses with promise to repay.
If the parental monetary gift is truly a gift to both spouses during the marriage, then the matrimonial assets list will include the gift. The gift will then be divided as part of the agreed course of asset division.
Classifying a parental gift is more complicated when it is not clear if the parent(s) gave the monies as loan or gift.
For divorce proceedings, the courts have set and listed various key factors to resolve cases like these. In determining whether a parent’s monetary advance is a loan or gift to an adult child, the courts consider the following factors:
- Whether there were any coexistent documents evidencing a loan
- Was a method for repayment specified?
- Whether there is security held for loan
- Whether there were advances to one adult child and not others, or advances in unequal amounts to various adult children
- Whether there was any demand for payment before separation of parties
- Whether there have been partial repayment
- Whether there was any expectation, or likelihood of repayment
Self-Serving Evidence In Matrimonial Property Division
The courts are cautious regarding self-serving evidence. This is when one spouse wants to use self-serving evidence in order to feed a matrimonial property claim. In the given scenario, the outcome depends on the circumstances and facts.
Help You Can Count On
It is important to discuss with a lawyer when you consider giving these types of gifts and loans to an adult child at the time of marriage, and during the course of marriage of an adult child because things can change in the future. Contact Satish Narang for helpful tips and advice to help you accurately navigate your matrimonial property division case.
Satish offers professional legal advice and experience drawn from a multicultural background. He has spent his years in practice supporting clients through their family law, business law, real estate law, immigration law and wills and estates matters. He is able to find innovative solutions for his clients thanks to his rich, diverse background, which allows him to examine clients’ legal problems from a variety of different perspectives.
Alternative Dispute Resolution: How To Make Divorce Less Costly
Alternative Dispute Resolution (ADR) In Calgary - www.sknlaw.ca
Nobody goes into a marriage planning on one day getting divorced. Unfortunately, many marriages ultimately end with both spouses deciding to go their separate ways. While divorce is often portrayed in the media as a bitter and harsh process, there are ways to end a marriage without resorting to fighting, arguments and blame. Alternative Dispute Resolution (ADR) is one way to handle divorce to minimize stress on the divorcing spouses and ultimately make it less costly.
Alternative Dispute Resolution Techniques (or ADR process) have grown considerably in popularity in recent years as a way to avoid contentious litigation while ensuring that those going through a divorce still have their rights and best interests protected.
What is Alternative Dispute Resolution?
Alternative Dispute Resolution is essentially any dispute negotiation process whose primary aim is to keep the dispute out of court. This simply means that when divorcing spouses agree to an ADR process, they and their lawyers agree to keep the process out of court, and instead use mediation or arbitration process to settle their case.
Alternative Dispute Resolution Takes Team Work
What makes ADR process unique is that it involves teamwork. The divorcing parties work with a team of specialists that often include child behavior specialists, accountants, therapists, financial analysts and so on. Each spouse will have their own lawyer on hand to ensure that their best interests are still being advocated for. Each spouse and his or her attorney meets directly with the other spouse and his or her attorney to negotiate a settlement. The Parties arbitrate (negotiate) the issues in dispute.
There are benefits to the ADR process which make it a popular option for many divorcing parties these days. However, there is one scenarios where litigation is a better route to get the best outcome in a divorce case. We’ll discuss this scenario later in this article. First, let’s see the benefits of Alternative Dispute resolution.
3 Benefits of Alternative Dispute Resolution
Benefit #1: Alternative Dispute Resolution Tends To Be Cheaper Than Litigation
One great benefit of choosing to divorce through Alternative Dispute Resolution is that it tends to be much cheaper than litigation. Even with a team of specialists involved, the cost is often still less than going to court.
Benefit #2: Alternative Dispute Resolution Addresses Important Details
Another benefit of Alternative Dispute Resolution is that the final divorce settlement is less likely to overlook important details because each party’s interest is covered by professional input from a team of specialists. This means the divorcing parties are likely going to make the best decision during the ADR process before arriving at the final settlement.
Benefit #3: Alternative Dispute Resolution Takes Less Time
The thirst benefit is that Alternative Dispute Resolution also tends to be more time-efficient and less stressful for both parties. The ADR process eliminates the need to go through the whole drawn out process of going to court, attending multiple court sessions, and waiting for the decision of the court.
A Scenario where Litigation is Better than ADR
An important point to bear in mind about Alternative Dispute Resolution is that Trust and respect between both parties is fundamental to ensuring the ADR process works.
the ADR process is unlikely to succeed if the relationship between the spouses is hostile, especially if one spouse fears (or distrusts) the other spouse for any reason; like when one suspects the other will not be truthful about his or her financial situation. In such instance, the power of the court can help level the playing field for the parties involved.
Conclusion
The end of a marriage is a difficult time for both spouses, but that does not mean divorce negotiations necessarily have to make the process even more hostile and stressful.
If you are going through a divorce, it is important you talk to an experienced family lawyer for assistance. We will help you navigate the divorce process so you will understand what your divorce options are and how to protect your best interests while moving forward.
Satish offers professional legal advice and experience drawn from a multicultural background. He has spent his years in practice supporting clients through their family law, business law, real estate law, immigration law and wills and estates matters. He is able to find innovative solutions for his clients thanks to his rich, diverse background, which allows him to examine clients’ legal problems from a variety of different perspectives.