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Staying out of Court

What are some options to avoid going to Court to resolve my family law problem?
If we settle our family law matters out of court, how do we get a legally binding agreement or order?

What are some options to avoid going to Court to resolve my family law problem?

Going to court can be expensive, lengthy and stressful. There are no guarantees that you will get what you want.  Most people with family law problems settle their issues out of court by negotiating themselves or with the help of lawyers.  The best way to decide whether you should bring your family law problem to court is to get legal advice from a lawyer.  It is important to choose the right lawyer for your legal problem.  Consulting a lawyer does not mean you will automatically end up in court.  Lawyers are trained in negotiation and they are required by their professional code of conduct to try to reach a settlement for their client before going to court. 

If you are ending your marriage or relationship, start by sitting down together to see if you can come to an agreement – How will you divide your property? Can you agree on a parenting plan? What about support?  If you need help working out an agreement, consider using the services of a mediator.  To find a mediator, check the yellow pages under “mediation services” or go to the Family Mediation Canada website and click “find a mediator”.

Each party should take any agreement reached to different lawyers for review. Once you sign an agreement, it is legally binding.  The agreement can be filed with the court for the purpose of enforcing the sections that deal with support payments.

Another option is to use a collaborative law process if it is available.  You and your spouse or common-law partner would work with your collaborative law lawyers as a team to understand each other’s needs and come up with the best solution for both of you and your children.

If you have children, consider taking the free six hour parenting after separation information session, offered in 2 parts, called “Parenting Information Program”.  This session can help you learn about the legal issues involved in family law matters and the various ways to resolve differences out of court.  It focuses on the impact of separation on children and how to reduce that impact.  For more information or to register, call the Family Law Information Line 1-888-236-2444 .  

For more information, see our fact sheets: “Collaborative Law”, “Traditional Negotiation with Lawyers”, “Coming to an Agreement Together”, and “Mediation

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If we settle our family law matters out of court, how do we get a legally binding agreement or order?

If you have separated from your spouse and settled issues such as the division of marital property, child custody and access arrangements, and support, you can write up what you’ve agreed to and have it filed with the Court.  This document will become your “separation agreement” and both partners will sign it. 

You can have your agreement filed with the court as a consent order.  A consent order is simply a final judgment of the court that all parties agree to.   However, to be enforceable, a separation agreement must obey the rules set out in various laws.  For example, if you have children, the agreement must make appropriate arrangements for payment of child support.

It is a good idea for both parties to get legal advice from separate lawyers before signing any contract. If you did not have legal advice a court may overturn the agreement.  Your lawyer will explain how the agreement may affect you.  If your lawyer advises you not to sign, that is not a suggestion - it is a serious warning.   

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  P.O. Box 6000, Fredericton
New Brunswick, Canada E3B 5H1
  Telephone: (506) 453-5369
Family Law Line: 1-888-236-2444