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Which matters go to court?

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  • January 16, 2015

Which matters go to court?

There are three ways to resolve a family law matter reliably. Two of those – a consent order and financial agreement – are relatively quick and cost-effective but requires some cooperation; the third – a judge’s order – tends to be difficult, expensive and stressful but can occur without cooperation. It follows that cooperation is the key factor that means the difference between a quick, easy, cost-effective family law matter and a difficult, expensive, stressful one. See Cooperation.

Sometimes, it is not feasible to resolve a family law matter by consent or by financial agreement.

Disclosure obligations and advice requirements are central to family law. The law assumes that parties need reliable information about each other’s financial circumstances and that each needs independent advice about how family law operates in order that a deal can be fully reliable.

It is not generally feasible to make informed decisions in family law matters without being able to make a reasonable calculation of the value of combined net assets or without sufficient information to facilitate proper advice. This requires a level of cooperation between parties.

Sometimes, it is not feasible to obtain the kind of cooperation that is necessary to obtain sufficient information to make informed decisions. In such cases, a party may decide to make use of the court’s rules and/or to request orders of the court in order to oblige another party to cooperate and/or to provide information.

A decision to involve the court will ordinarily involve a detailed examination of the potential benefits and potential costs.

Very briefly, involving the court can, where it is necessary, provide benefits by obliging both parties to provide the kind of information that is necessary for each to prepare a reasonable calculation of combined net assets and to facilitate proper advice. This means that both parties can be in a position to make informed decisions. Without such information, a party may not be able to translate family law advice (which is most usually expressed in terms of overall percentage shares of combined net assets) into dollars and cents and may not be able to tell the difference between a good and a bad deal. This is the most common cause of failure of settlement conferences. See Case assessment conference and Conciliation conference. Involving the court will also oblige parties to attend at settlement conference(s) and will provide a timetable that obliges both parties to provide information and to attend such conference(s) on a timely basis.

Very briefly, involving the court can mean additional costs. While the first two steps in the court’s process are generally efficient and cost-effective and while there is a reasonably good probability that a matter will be resolved at those steps (and that probability can be substantially improved with proper preparation – see Case assessment conference and Conciliation conference), there can be no guarantee that a matter will be resolved within those first steps. Further steps in the court system can be expensive, time-consuming and stressful. A full discussion of this point is beyond the scope of these notes. You might wish to call us to discuss.