Family Mediation and the Matrimonial Home
By Tracy Kendel
Divorcing, even on the surface, is one of the toughest things to go through in life even with a process like family mediation. But when you factor in everything involved – dividing assets, determining what to do with the family home, how to handle parenting, etc. – it can feel downright overwhelming.
There are a number of concerns facing both parties. Near the top of the list is where each party will live. Is it possible for one party to buy the other out of the matrimonial home? What about finding housing before school for the kids starts? How can both parties hope to achieve a resolution about what school or the requisite activities that the kids will take part in?
Family mediation can help to make a lot of this easier. Mediation facilitates a resolution. Mediation allows both parties to partake in the parental responsibilities, to keep the best interests of the children in mind, and ensuring both parents can move forward with their lives.
Family Mediation is Mandatory in Saskatchewan
Whereas family mediation was once considered to be a viable option, it is moving into law. In each of the Saskatchewan court jurisdictions – beginning on July 1, 2022 – any family law matters that go to the family court are required to attempt a family dispute resolution process. This resolution is required to be used by the close of the court proceedings before moving to another type of court proceeding.
It is important to know that family arbitrators, collaborative lawyers, parenting coordinators, and recognized family mediators all charge their own fees and set their own processes. There are also low-cost options available through the Dispute Resolution Office with the Ministry of Justice and Attorney General.
The goal of this legislation is to give couples a quicker resolution. The court systems traditionally have been known to drag things out, leaving both parties to feel the enhanced emotional and financial strain that can come with the process.
By not only introducing family mediation into the mix but making it mandatory, the goal is to encourage couples to find resolutions that save them time, money, and emotional strain. For low-income couples, family mediation can provide a resolution that doesn’t require extreme financial costs.
The Disadvantages of Traditional Litigation
It is no secret that divorce is a time where emotions run high, and conflict is seemingly around every corner. Though there can be some benefits to litigation, there are far more disadvantages that negate those benefits quickly.
There are several disadvantages to going through the path of litigation. Let’s take a closer look at the process.
1) It’s Going to Cost You
The first and most obvious disadvantage of going through traditional litigation is that it is costly. There are court costs to cover, as well as legal fees each step of the way. Lawyers are not cheap to begin with and the longer the process drags out, the more costly the entire process will be.
Because of this, money can definitely become a factor in any divorce case. For those who have a higher net worth, there is a risk of extreme financial loss. At the very least, it can cause concern for your financial future. After all, money is the number one reason why divorcing couples go to court.
2) It’s Naturally Adversarial
Divorce lawyers make their money through billable hours. So, naturally, the longer the process goes on, the more money they stand to make. Which furthers the need for conflict in order to draw things out and make it even more financially difficult.
With emotions running higher and conflict almost encouraged, it can lead to serious emotional strain. The process of divorcing can be difficult enough without feeling constantly at odds with your soon-to-be ex.
3) The Risk of the Ruling
As opposed to family mediation, where both parties come together to decide mutually, litigation declares a “winner.” But in the end, there really isn’t a winner, just two people who are emotionally and financially exhausted.
Judges will do their best to be fair, but they couldn’t possibly know the full situation. Because of this, it is entirely possible that their ruling may not sit well with one party. To go that far, to pay that kind of money, and still not get the desired ruling can be incredibly stressful.
4) Less Options Available
One of the great things about family mediation is that it is customizable to the needs of both parties. Litigation naturally presents problems where property, children, and pets are involved. Even something like a collaborative divorce can offer the options that divorcing parties need when it comes to visitation and custody.
Family Mediation and Separating Agreements
When the decision to separate has been reached, it can feel difficult to know where to turn. Part of the process of family mediation involves a separation agreement. The separation agreement outlines the matters of agreement between both parties.
The matrimonial home is often times a point of contention when it comes to divorcing parties. The separation agreement makes it clear what will happen to the home, who (if anyone) will live in it, and anything else that needs to be dictated.
Family Mediation and the Matrimonial Home
What happens to the matrimonial home can feel confusing, especially in the middle of a divorce. Generally speaking, the property acquired during the marriage has to be split equally. This includes not only the home, but businesses, furniture, pension, cars, and more.
Property that is owned prior to the marriage will require any increase in value to be divided equally. So, if one party purchased the home before the marriage, any increase in the value of the home would need to be divided equally.
In more than a few cases, both parties may decide that the matrimonial home is no longer a viable living option. When the home sells, both parties split the proceeds.
There are plenty of instances where one party wishes to remain in the home. This is where the separation agreement can prove to be so beneficial.
Buying One Party Out
There is the option for one party to buy the other side out should one want to remain in the matrimonial home. It is important to note that this should all be covered within the separation agreement.
In order to buy out one party from the matrimonial home, a separation agreement is required. The separation agreement can outline a lot of things, primarily what happens to the family home.
The options are various when it comes to separation agreements and the family home. Both parties can agree that one will remain in the home. One party can buy the other out in order to remain in the home. Homes can be sold, with proceeds being split between the two parties. Any arrangement that works for facilitating the process of divorce will be covered in the separation agreement.
The separation agreement can also revolve around the children (if there are any involved). The goal is to create as normal a situation as possible so that they can have as little emotional strain as possible.
Family Mediation Can Help Determine Parenting Matters
Right up there with property, the most common disagreement among divorcing parties is parenting. The separation agreement can help to determine what living situations must look like and the timeline in which it needs to happen.
For instance, one party may determine that both sides should have housing in place before the start of school. The separation agreement can outline these requirements. The separation agreement covers things like what school they will attend, what activities they participate in, and more.
But it all starts with family mediation. During mediation sessions, both sides come to an agreement on how to handle these decisions. It is something that litigation typically does not worry about, instead focusing on determining a “winner” in the divorce.
Parents will want to keep the best interests of the children in mind during divorce. Family mediation will keep their best interests in mind. And that is the most important thing in the end.
Fairway Can Help with Family Mediation
The Resolution Experts at Fairway Divorce can help facilitate mediation. We have been there and done that when it comes to divorce mediation, allowing couples to find a better resolution along the way.
Don’t go headfirst into the litigation process without knowing the options. Family mediation can provide the timely resolution both parties need to move on. Call us today to find out more about how mediation can be the only answer that your situation requires.