One of the more interesting facets of divorce law is that many couples facing this difficult situation donâ€™t realize how many options they have. For the majority of divorcing partners, the traditional method of going before the courts, battling it out in a bitter fight and accepting the judgeâ€™s call is not the best way to go. For many, divorce mediation allows them to get past their feelings of anger and resentment and keep control over their own decisions. For others, there are too many negative feelings, but arbitration can still help. And for others, a combination of mediated and arbitrated divorce is the key. Hereâ€™s a look at how limited arbitration options can be helpful in resolving a mediated divorce.
In a mediated divorce, rather than fighting things out in a courtroom, couples come together with a neutral third party trained in divorce law and specializing in this sort of procedure. This third party, the mediator, has the job of helping to guide the couple through making the right decisions for them and their families. The process saves money, preserves confidentiality, and allows the couple to not only maintain control over the situation, but sometimes to learn to work together as a team once more, and salvage a friendship or partnership from the ashes of a dissolved romance.
For couples who have too much conflict so that mediation is not a viable option, arbitration may still be a valid alternative means of divorce. Arbitration falls somewhere between mediation and adjudicated (court) divorces. The third party in this case is a neutral arbitrator who hears the couplesâ€™ arguments and conflicts, and makes a legally binding decision for them on various issues from child custody to division of assets. While still adversarial, this method also costs less than the courts and preserves confidentiality and privacy while putting the family through less stress than a bitter court battle.
A third option that many donâ€™t realize exists is that of limited arbitration or what is sometimes known as mediation-arbitration. Sometimes, when couples undergo a mediated divorce they hit a wall in their discussions. There seems to be no middle ground on one or more issues, and they canâ€™t get past the anger involved with these specific problems.
When this happens it is possible to have specific issues in the divorce resolved by arbitration, while the rest of the process continues in a mediated fashion. For example, letâ€™s say that a couple has no problems with the division of assets, but custody is a major sticking point. Dad wants full custody while mom wants shared custody, and the two will not budge. In this case, they can settle their asset divisions through mediation, and bring in an arbitrator to settle the custody issue.
Your divorce need not be all or nothing. Sometimes using a combination of mediation and arbitration can be a valuable tool in maintaining your partnership while still arriving at a fair and equitable means of dissolving your legal and romantic union. For more information, look at our informational page on the topic, and give us a call for a free consultation today.
Alberta, like most Canadian provinces and US states, requires property to be divided equally in a divorce. Should a divorcing couple decide to enter litigation, each spouse will attempt to argue their version of what they see as an equitable division of property. In the end, a judge must decide how they would divide property fairly, which may or may not coincide with either partyâ€™s arguments.
In a mediated divorce, the situation is different. Both former spouses are expected to hold to the guideline that property should be divided 50/50, but whatever mutual conclusion they come to will be the outcome. Any written agreement signed by both parties will be legally binding unless it can be proven to be completely unfair to one side or the other later on. The agreement can also be amended later as needed if both parties once again agree to the terms.
Basically, a mediation allows both sides to have much more control over the outcome of property division rather than relying on the chance that the judge will see things their way. Most parties leave the agreement happy and satisfied compared to divorce litigation rulings.Â
All shared assets and debts must be divided equitably. Assets and debts are considered â€œsharedâ€ if they were acquired after the marriage took place, even if they are only technically in one personâ€™s name. Any change in value will also be shared between the former spouses.
For instance, a home that was purchased before a couple married and was lived in for five years after the marriage most likely increased in value during that time. Say that the appraised value of a home increased by $16,000 during the years the couple stayed there. That amount would be split evenly between the former spouses, and the value of the house before the divorce will go completely to the spouse that owned the house outright.
Keep in mind that debts are split, too. These include:
There are some potential exemptions to shared property, which can include business assets registered privately to one spouse and used exclusively by them and gifts given to one spouse. You will have to document that these assets remained separate, and even then any increase in value could still be eligible for division.
Generally, dividing property equally is a good idea. An unequal division should have well-stated reasoning or a binding circumstance like a signed prenuptial agreement. Otherwise, one party can decide that they are unsatisfied and could argue that they were taken advantage of later on. Have sound legal counsel and a good contract reviewer to spot potential problems during the agreementâ€™s drafting.
For more advice on dividing assets or arranging a divorce mediation in Alberta, visit our divorce mediation services page.
Arbitration is the practice of dispute resolution. During arbitration, each party tells his side of the dispute to the arbitrator and requests a resolution. Both parties may support their cases with witnesses and documents and make arguments. Then, an impartial third party determines a dispute in a private and judicial manner.
Arbitrators reach fair resolutions for family law disputes, such as support and custody of children. A single arbitrator or a tribunal, which can include of any number of arbitrators, may participate in an arbitration hearing. The procedure must be fair and take into consideration the best interests of children, if they are involved.
Both parties must be in agreement on the process before it can begin. An arbitration agreement is binding only when the following conditions apply:
All of these conditions must apply for the arbitratorâ€™s decision to be enforceable in court.
To ensure the arbitration process runs smoothly and the court does not set aside your agreement, a few precautions must be taken.
Call Jones Divorce Mediation Inc. if you think you need arbitration. We have years of dispute resolution experience and will be happy to provide you with a free, confidential consultation.