Well-meaning lawyers everywhere are familiar with the game of chasing ex-spouses round and round, to get them to the negotiating table to reach a property settlement. It is frustrating and costly.
An ex-spouse might be afraid because of issues of power, control and violence, or they may not have had the support or the time to move towards accepting the end of the relationship. There are many other reasons why people dread the thought of any form of divorce negotiations. Working out practical arrangements at the end of a marriage or relationship isn’t something anyone looks forward to. We can all understand these realities.
In my experience though, there is a class of cases where a refusal to engage in negotiation is simply strategic; a person may just be too comfortable, or know they have something or a lot to lose in a final settlement. When these couples end up in the court system, that seems to be an expensive failure.
Lawyers will frequently try for a long time to persuade a too-comfortable or too-much-to-lose spouse to come to the table. Sometimes all contact from the client-spouse or lawyer is ignored. On other occasions, the ex-spouse will hire a lawyer and appear genuine about negotiating, when in reality that is a sham. If the shamster has no real intention to negotiate, a lot of time, money and goodwill can be lost while they fail to attend intake appointments, or instruct their lawyer to request endless information that is pointless, non-existent or already known, for example. Often this game is accompanied by expressions of a desire to “reach an amicable settlement” and to “avoid court”. These sentiments are good to hear, but on the other hand, who’s going to say in writing that they do not want to settle out of court, or that they want a non-amicable settlement?
One legal reform that could bring the unwilling negotiator to the table is the creation of a low-document “Bring the Horse to Water” application, the sole purpose of which is to have the two spouses meet in the same place on the same day. They could, on that day, be ordered to exchange financial disclosure and to collaborate or mediate. Of course there are cases where arguments will be had about the admissibility of information, or about the accuracy or completeness of same, which could hold up settlement negotiations. That’s not new, and those cases could be diverted to another track. But, for many uncomplicated cases that end up in court when one person becomes desperate because they are being ignored or played along, somebody needs to call it, and the Family Court has the necessary power to be that somebody.
Instead of talking endlessly about increasing the resources of the court system, we should be talking endlessly of ways to keep people out of the court wherever possible, which is in fact in most cases, with a little bit of the right persuasion.