The Family Law Process, Part 1
Everyone has seen a hearing on TV, but very few people know the process that leads up to that hearing. 95% of family law cases get settled before they even go to trial. Family law cases can be very stressful, but knowing what’s coming next can help lessen that stress. For a few weeks, we will look at the steps of a family law case prior to a hearing.
Part One: Negotiation
The first steps in a family law case usually happen before a court case has even begun. In cases where both parties are generally civil or at least willing to talk, the negotiation of an agreement before filing for custody or divorce can minimize time spent in the court system and costs paid to lawyers.
It is always advisable to have a lawyer draft an agreement for separation, property settlement, and/or custody. An experienced family law attorney will make sure that the agreement covers all important issues and protects your interests in all scenarios. There are agreement templates available on the internet, but no two family law cases are alike, just as no two families are alike. An attorney will look at all the things that make your family unique and take those factors into account when drafting your agreement. Your attorney can also advise you about what you are entitled to and make sure you don’t give up more than necessary while proposing a reasonable offer for the other party to consider.
Separation and Property Settlement Agreements
Separation and property settlement agreements can determine who will leave a marital home, what happens to marital property, and alimony or post-separation support, although not every agreement will include all of these issues. These agreements are not filed with a court; they are treated like a contract between the spouses. Both parties will usually waive their rights to file court claims regarding the issues covered in the agreement.
Custody and Child Support Agreements
Custody and child support agreements may be part of a separation agreement but may also be separate and occur between parents who were never married or who have had a change in circumstances. Custody and child support agreements cover issues like where the child will live, visitation, schooling, decision-making power, and holidays. These agreements should be filed with and approved by a Judge, as they can only be enforced if they are part of a court order. Custody and child support claims cannot be waived.
Decide What’s Important to You
After a proposed agreement has been drafted, either you will take it to the other party or your attorney will send it to their attorney, and then the negotiations begin. This is the time to think about what is really important to you and what you are willing to trade. Do you really want the marital home, for instance, or is having the money to start over a better option for you going forward? Compromise can be important at this stage, but your attorney can help you balance compromise with making sure that you still get what is fair. Several proposals may go back and forth before an agreement can be reached. Negotiation often continues even after a lawsuit has been filed, and an agreement can be reached between the parties at any time prior to the end of the actual hearing.
Do You Have to Reach Agreement?
It is important to remember, however, that you do not HAVE to come to an agreement. Some people just can’t agree. Some people are not even be able to begin negotiations, particularly when emotions run high between the parties, there is some sort of power imbalance like domestic violence or financial abuse, or the other party has already shown that they are unwilling to compromise. Instances like these are what the family law courts are for, and when negotiations aren’t going to work, it’s time to file a Complaint and begin a lawsuit.