Deciding to get a divorce may be one of the hardest decisions you’ll ever have to make, especially if there are children involved. But for some people, divorce is the best course of action for a family’s overall well-being. Furthermore, despite the difficult decisions, a divorce doesn’t have to be a contentious process. You have choices which allow you and your spouse to proceed with little aggression or resistance. A traditional divorce can cover all aspects of separation and include a legal mediation to outline and guarantee specifics, while a collaborative divorce provides many benefits for a consensual and peaceful proceeding. However, although a collaborative divorce may seem like the most agreeable option, it does have one major limitation: a lack of urgency.
Time Constraints for a Traditional Divorce
In a traditional divorce, after filing your application with the court, you’ll be given a specific hearing date with a Judicial Officer within a few months of the filing date. This hearing date is an essential time limit for you and your ex to finalise any decisions, requirements, and compromises for the divorce, including:
- Mediation requirements. Family Dispute Resolution and other mediation attempts must be completed before the hearing.
- Parenting orders. If children are involved, a comprehensive parenting plan should be negotiated before the hearing.
- Application consent. If the divorce is not amicable and your spouse lives in Australia, you must present him with the divorce application at least 28 days prior to the hearing date. The requirement is 42 days if your spouse lives out of the country. If the application isn’t served within these time limits, the hearing may still be able to proceed, as long as your spouse consents in writing, or your spouse or his lawyer attends the hearing and indicates consent.
As a result of these time limits and the hearing date, you’ll have a definitive timeframe for how long the proceedings will take and when your divorce will be finalised. A collaborative divorce, on the other hand, provides no such assurances.
Lack of Time Constraints in a Collaborative Divorce
Since a collaborative divorce relies on mutual understanding and negotiations between two parties and doesn’t require a court hearing, it is not subject to normal judicial time limits. As such, the lack of court-imposed time limits must rely on collaborative lawyers and their clients to devise alternative mechanisms to avoid the risk of unreasonable delays by one party or the other. Unfortunately, these alternatives may not always keep the proceedings on track, causing a host of potential problems.
Common problems that arise as a result of open-ended time limits include:
- Increased frustration. Since there is no strict time limit, negotiations can drag out and prevent you from making future plans and starting over.
- Increased stress. Not knowing when a stressful situation will be over can cause even more anxiety for all parties involved, especially children.
- Increased costs. Without a definitive timeframe, there is a risk that your ex may engage in the collaborative process simply to increase your financial burden as you will be responsible for lawyer costs and mediation debts.
Your Family Lawyer Can Help
It’s important to note that, although a court will not set time limits in a collaborative divorce, an experienced lawyer can address time limits through a collaborative contract. Such contracts can include time limits which apply to each stage of the process and provide appropriate penalties for when these time limits are not honoured.
For more information on how to draft a prudent contract to avoid delays while securing your collaborative divorce, come visit our Perth office today. We’ll be happy to provide you with all the answers and guidance you need to begin the next chapter of your life. Call us now at (08) 9214 3887 or visit our Facebook page for more info.