If I Don’t Have Money, Will I Lose in Family Court?

Although, often all it takes is getting in front of a judge who is concerned that only one spouse has money for the other spouse to want to negotiate, go to mediation or otherwise stay out of court. When one spouse has found the money to start court proceedings, his or her ex may worry that there is the money to continue them. Starting court involves a lot of steps, which can make it expensive. So, an uncooperative spouse may choose to be cooperative to avoid spending more on a court case that he or she may lose, and uncooperative spouses may find that lose a lot. 

Fortunately, there are some options for people with limited funds to get the legal help they need to go to court:

1. Ask for money from friends and family. This is the most common way people get money for their divorce or to go to Family Court. Often, this money will be a gift, or if it is a loan, then the repayment terms are very favourable.
2.  Hire a lawyer on a limited-scope retainer. There is a lot more information at the link, but essentially this means hiring a lawyer to give advice only or do one specific task, rather than dealing with every part of the file. The spouse with limited funds then can choose what he or she is going to have the lawyer do and keep control over how much it will cost.
3. Ask a judge for an advance on monies owed. In many cases, particularly when it comes to property division in a divorce, it will be evident right from the beginning that one spouse will owe the other some money in the end. Where the spouse who needs money is the spouse who will be receiving the money, then it is possible to ask for the spouse with the money to pay at least some of it immediately. If the spouse with the money won’t agree to do this, Judges can order the payment on a motion where it is clear that one spouse will owe money. However, this is a motion for “partial summary judgment”, which makes it a little technical, so it is best to speak to a lawyer.
4. Ask a judge for “interim costs and disbursements.” Rule 24(18) of the Family Law Rules says that a judge can order that a party to a Family Court case pay an amount to another party to cover some or all of the expenses for carrying on the case. Judges may do this where it is necessary to “level to playing field” or where one party’s behaviour is so unreasonable it is clear that party will end up paying costs in the end anyway.
5. Get a “Divorce Loan” or a Litigation Loan. These can be expensive loans, but they may be worth it to a spouse who needs to go to court to get anything from their ex.

Also, it is often possible to get support orders, especially child support orders, early on in the case. These are for temporary support and are meant to last until there is a trial or settlement. They may not get the support amount exactly right, but they can provide some necessary cash flow to help with Family Court. With the court making automatic orders for disclosure right at the start of the case, the parties are required to provide at least basic financial disclosure within 30 days of the start of the court proceeding. That allows for at least an estimate of what support will be payable. Only unreasonable Family Court litigants will not settle some or all of the support issues. Judges may punish a party for being unreasonable by having that party pay the legal fees for the other party.

All of the above options that require a court order can be a little tricky and technical. It is best to at least book a consultation with a respected family law lawyer to understand what option is best for you and how to pursue it.

Still, there is no denying that court is very expensive. It is the only dispute resolution process that one separated spouse can force the other into. For that reason, and others, some judges struggled between allowing each party the full opportunity to present his or her case the way he or she sees fit, and dealing with matters quickly and potentially leaving the impression that the court was not listening or did not care. Parties with more money can ask for more opportunities to pursue more steps, bring more motions, present more arguments, and generally litigate more aggressively than parties who are trying to do their case on a tight budget. In addition, where judges believe a settlement may be possible, there may be repeated settlement conferences, which one party can use to financially exhaust the other – looking ready to settle but just really trying to multiply the number of court appearances.