What to do next after you reach agreement with your ex.

If you value your sleep read on!

After lengthy discussion, much frustration, and considerable emotional turmoil, you and your ex have apparently reached agreement on the terms of your separation.

What now?

The best place to start is what not to do next.

This usually involves one of the two parties purchasing a Separation Agreement precedent either on-line or from a retail outlet and simply filling in the blanks. Both parties then sign the Agreement, and have it witnessed, usually by a friend or neighbour.

So what’s wrong with that?

Plenty, and here’s why.

Firstly, in all the many years that I have reviewed such agreements for my family law clients I have yet to see, even one, which was properly completed.

This means that important issues may not actually have been finally resolved or even properly settled, leading to potential (completely unanticipated) future problems.

To illustrate, I recently met with someone and reviewed their agreement. Not only was the critical issue of the waiver of spousal support left unclear, but the parties had also miscalculated the payment of child support.

Secondly, I have also yet to see one agreement which dealt comprehensively with all of the key issues, such as the possibility of the re-location of the child’s residence, or the sharing of certain child related expenses.

Lastly, because these agreements are signed and witnessed without the benefit of independent legal advice there always remains the possibility that a spouse could seek to have the entire agreement set aside on the basis that they did not properly understand their legal interests.

So much for having an agreement which you believed was final!

Which leads me to tell you what I believe is your next best step once you and your ex have reached agreement.

Make an appointment with an experienced family lawyer such as me and give them the details of your “agreement”. (Readers of this blog know it’s an even better idea to meet with counsel before you and your ex discuss and “finalize” the terms to avoid (both likely and damaging) misunderstandings.

The lawyer will be able to advise you (before you sign) if any key issues have been either omitted or misunderstood, and steer you in the right direction.

You can also ask the lawyer to prepare a draft agreement for you to review with your spouse, or at the very least have any draft agreement which you receive from your spouse reviewed before you sign. This is the very best way to avoid future complications.

After all, considering everything you’ve already been through, you deserve a good night’s sleep!

Why love hurts and what you can do about it!

Love hurts.

In fact, as a recent Suzuki documentary appears to confirm “Addicted to Love” is much more than just a Robert Palmer song title. Actually the way your brain is wired, being in love triggers the same chemical reaction as any other kind of addiction.

This is great when things are going well, but not so great when you separate.

Think withdrawal, that’s right, your brain handles separation the same way that it does with any other addiction. You become an emotional wreck.

Now imagine while you are already feeling emotionally overwhelmed you are faced with the unknown and terrifying prospect of resolving your legal matters.

In such an emotionally vulnerable state you are in no condition to deal with the stress of protracted legal proceedings. That’s why I suggest, unless it’s an emergency, to first consider your court alternative options, including utilizing either an experienced family mediator or collaborative divorce lawyer.

As both a family mediator and qualified collaborative divorce lawyer these options offer three key advantages over the traditional court process.

-         Firstly, they are non-confrontational. This means there are no points to be scored through aggressive and adversarial legal proceedings.

-         Secondly, they are emotionally supportive. This means they can provide a better and more sympathetic understanding of your and your ex’s emotional states, thus improving your decision making.

-         Thirdly, they are future friendly. You and your partner get to decide your own future, not a judge.

There’s also something else you should do for yourself. Take advantage of available counselling for yourself. Also check out my kitchentabledivorce.ca support group which offers group members both legal guidance and professional counselling support.

Remember love hurts – but your separation or divorce doesn’t have to!

Signs to tell if your partner wants out!

Sure, being served unexpectedly with legal papers by a complete stranger is a sure, (but not so subtle), sign your partner wants out of the relationship, but what are some of the other, far less obvious, signs?

Rising Debt

Typically, all debt as of the date of separation is considered a family debt and shared equally, whether or not the debt is in joint name or not. So if your spouse suddenly expresses an interest in taking an expensive, exotic, vacation (without you), or in making any other major expenditure, for which he, or she, will be the main recipient, it may be a sign of trouble to come.

Parent of the Year

If your, otherwise unhelpful, spouse, surprisingly, offers to become much involved with the child care responsibilities, it may mean one of two things. Either, they have sincerely figured out the true meaning of responsible parenting, or (more cynically), they’ve received legal advice to become more actively involved with the children, to maximize their leverage in future parenting/custody negotiations or litigation. Hopefully it’s the former.

Jobless in Seattle

If your, otherwise job focused, spouse unexpectedly declines to accept a much anticipated promotion, or decides to forego available overtime, it may be because they’re genuinely feeling tired or burned out. Or, it may be because they’ve received legal advice to minimize their income to minimize their future child and spousal support payments.

Disappearing Documents

If all of a sudden you discover that the drawer which formerly held all of the various bank and investment statements, income tax returns, property documents, etc is now, inexplicably, empty, it may be because (as your spouse advises you) Revenue Canada requires them for an audit.

Or, it could be much worse!

Namely, your spouse has been advised to collect and copy all of the important documents such as bank statements, income tax returns etc, since such documents are critical for the purpose of  determining income, and the distribution of assets and liabilities.

Of course, the most obvious sign that your spouse has plans to separate? You catch them bookmarking this blog!

How not to blow your divorce!

Sure there was some snickering when Rick Perry blew it during a nationally televised presidential debate. Yet while his self professed “oops” may have doomed his presidential aspirations it also triggered my own “ahah” moment.

Let me explain.

The same week Rick Perry’s gaff made headlines I met with a separated guy (I’ll call him Bill) who had some legal questions regarding his separation. Several years earlier Bill and his ex had signed an agreement which he showed me at our meeting.

It’s the same kind of basic do-it-youself separation agreement precedent I’ve seen before, and available almost anywhere. You simply fill in various sections and cross out what you don’t want.

Unfortunately for Bill, and many others like him, if you don’t take the time to understand, or pay any attention, to what you’re signing, the results can be financially disastrous.

When I asked if Bill, (or his ex), had obtained any legal advice beforehand he told me he hadn’t bothered, since they had both agreed not to “involve lawyers”.

Of course, as I mentioned to Bill, while this may mean that while his spouse may not want have wanted Bill to see a lawyer, (to learn his legal rights and responsibilities) she  may already have done so, and he’ll never know.

Nervously, Bill mentioned that his ex was now asking him to pay her spousal support, and he wanted to know my legal opinion.

I returned to review the terms of the agreement.

While Bill had in fact ended up with fewer, and less valuable, family assets, and  had assumed far more family debt, than his spouse, (typically the type of unequal asset division which is negotiated in return for waiving monthly spousal support), there was no mention in the agreement that spousal support had been waived.

Then the next shoe dropped.

Bill informed me that while his own income had in fact increased substantially in the several years since the agreement, the same wasn’t the case for his ex, whose income had actually diminished.

I plugged in the numbers in the Spousal Support Advisory Guideline Divorcemate calculator (the same software calculator used by courts in BC to determine the range of spousal support) and told Bill the grim news.

Bill remained potentially liable to pay his ex tens of thousands of dollars in spousal support for a long time.

Liability and distress which Bill could have avoided altogether by spending several hundred dollars for good legal advice before signing the agreement.

Big Oops!

So if your ex says let’s not involve lawyers to settle your matrimonial issues, just nod.

Then call me.

Unless of course you want to blow it like Bill.

Does it make any difference who files first for divorce?

Well yes and no: it all depends.

Here are several situations where it can definitely make a difference.

Let’s say you and your ex are separated geographically by several hundred or thousand kilometres.

If your ex decides to commence a court action at a court registry close to where he resides it means that all of the necessary court hearings and related proceedings will need to be heard at that court registry. In the event your attendance is required you or your counsel will need to be present, causing you maximum inconvenience.

Also, if you decide you may need legal representation then it makes practical sense to retain counsel located nearby to the court registry, after all you don’t want to be paying your counsel major travel time to attend court. In addition a local lawyer is more attuned to the local judges and any other counsel retained by your ex, which can be a huge plus.

Unfortunately however, retaining far away counsel makes it much more challenging to actually maintain any kind of face to face communication or to maintain an effective relationship with your counsel.

Of course all of these challenges will not be yours to face if you first decide to commence a court action at a court registry most convenient for you and your counsel.

There’s also another good reason to be first to file.

In a situation where your ex has no incentive to take any constructive steps to resolve differences through good faith negotiations, filing first can send a powerful message that you are serious about finalizing terms, if necessary with the assistance of the courts.

In my experience filing an action first can often motivate and encourage the other side to be more realistic and reasonable in their efforts to reach a mutually agreeable settlement. Otherwise your ex’s (and your) legal costs are bound to increase substantially.

So just what are the no’s to filing first, or filing at all?

Firstly, there are the related court filing and legal fees which you will have to incur. If both you and your ex hold off filing an action the funds that you would have incurred could be more constructively used to negotiate and prepare a Separation Agreement.

I also wanted to pour cold water over another argument made by some lawyers, namely that filing first gives you a advantage at court. It’s argued that a judge is much more inclined to take you seriously and grant what you’re asking for if you are the first to file and present your case.

Not where I’m from!

In my long experience a much more reliable predictor of legal success before any judge is preparation and legal precedent, not which side is first to file or present their case.

Remember, slow and steady can also win this race.

How to keep yourself afloat during separation!

Family lawyers typically talk legalese to their clients. After all law school is great at teaching about legislation, precedents, procedures and case law. This would be perfect if family law clients were robots!

Kind of like, but not quite, the situation involving some doctors, brilliant diagnosticians, with crappy dispositions, and pathetic bedside manners (a la House?).

The main difference is that unlike family law clients the role of the medical patient has always been to take direction, while the primary role of the family law client is to give direction.

Unfortunately however, as I have experienced over many years as a family lawyer, family law clients are often emotionally incapable of providing good direction to their family lawyer.

This is not surprising since separation itself often triggers intense and overwhelming emotional shock and trauma, while the family law system only multiplies the feelings of hopelessness and despair.

Since I have always been, and remain a firm believer that the client not their lawyer, makes the choices in their own family law matter, once provided the available legal options and alternatives, a client unable to make good choices imperils their own best interests.

This is why I am an advocate for anyone experiencing separation and divorce to obtain emotional support and counselling in conjunction with receiving good legal support.

One without the other is like a boat without a paddle. Trust me; you definitely do not want to be up this legal stream without a paddle. And throwing yourself overboard is not recommended.

This is also why I started the kitchentabledivorce.ca support group, a place where people can find professional guidance along with the support of others in the same boat!

When talk is definitely not cheap!

Met with several newly (and some not so newly) separated spouses this past week and each of them were still on speaking terms with their ex’s. That’s the good news.

Good, because the kitchentabledivorce (KTD) approach that I developed, and practise, is all about encouraging communication and co-operation between separated spouses, as an alternative to the traditional, adversarial, scorched earth, courtroom approach, practised by other lawyers.

Furthermore, KTD also acknowledges and promotes the concept of supportive emotional counselling as a valuable (and often neglected) healing adjunct to the legal process.

In other words KTD is all about the much bigger post divorce picture, not just the legal part of separation and divorce

After all, when the legal matters are finally settled with your ex (and they will be-trust me) you’ll still have the rest of your life to live. Continuing to feel unhappy about yourself, or finding yourself (yet again) in another unsatisfactory relationship is not the way you will want to live it.

So what’s the bad news about your communicating with your ex?

Nothing at all, provided you can resist the temptation whether motivated by guilt, shame, or emotional exhaustion to negotiate a settlement before you have any idea about your legal rights and responsibilities.

I can hear some of you say, “What’s the problem I can simply tell my ex that I didn’t know what I was agreeing to, and I didn’t sign anything, so whatever we agreed isn’t legal anyway.”

Right, you can tell your ex that you didn’t know the true value of the family residence that she wants to keep, which neither party thought of appraising. So instead of the one hundred thousand dollars you agreed to accept for your interest in the home (because the appraised value discloses a higher valuation) she will now have to pay you one hundred and fifty thousand dollars.

Remember this has got nothing to do with being legally binding and everything to do with being considered morally binding by your spouse. In other words if you negotiate (or rather promise) a truly crappy deal such as the above, your ex will expect that you stand by it.

If you now insist that your ex will just have to pay you more, see how far you now get with negotiating the balance of all of the other outstanding matters. In my experience, not bloody far!

So before you agree to pay, or accept anything for anything, or promise to abandon some other right ( ie spousal support) or interest,  make sure you first find out about your legal rights and responsibilities. That is if you want to maximize the chance of a negotiated, mutually satisfactory agreement.

Only then is it time to sit down at the kitchen table and unzip your lip!

Is moving out of the family home a good idea?

Not if you’re the husband, according to US author and family lawyer Joseph Cordell, who devote s a chapter in his book “The 10 Stupidest Mistakes Men Make When Facing Divorce” to the subject.

In fact, he makes some compelling arguments.

Firstly, if there are children, according Mr. Cordell it is much easier to stay fully involved with them if you’re in the family home than living elsewhere. I agree that this is certainly an important consideration before you make any decision to stay or go, since arguments involving access, can, in my experience, pose some of the most difficult, and frustrating challenges for any spouse who departs the family home.

In addition, after a lengthy period of separation from the children courts may be more reluctant to overturn the access “status quo” which has remained in place since you left the family home.

Secondly, there are financial considerations. Obviously, unless you have the option to move in with friends or family it is less expensive to simply stay in the family home.

Lastly, there is the matter of “stuff” – by that I mean items of furniture, personal effects, important documents (such as income or business related papers), etc. If you leave the family home, as I tell my own clients, it is virtually certain that you will never see such personal possessions again. This is also the reason I advise my clients should they choose to leave the family home that they move out everything they wish to retain, and to itemize and record (plus video if possible) not only what was taken but what was left. A video is helpful to counter any argument that, either the place was left a total mess, or that the only items of furniture remaining consist of wooden crates or the like!

In summary I would agree with the approach that it’s preferable to remain in the family home if possible, however there are certainly limitations. For example, if there are allegations or a history of domestic mistreatment (by either spouse) then I suggest it may not be prudent to stay. If family law disputes also become criminal matters the chance of either an amicable or speedy negotiated resolution are greatly diminished.

So, there really isn’t a simple answer to whether you should stay or go, it all depends on your own circumstances.

But one thing is certain, before you make this or any other important decision, take some time to talk with your own family law expert.

Three helpful tips to avoid the holiday access blues!

Holidays, such as this weekend’s Thanksgiving, can be times of great family joy and celebration. But for separated or divorced parents holidays can often be times of great sadness and disappointment.

In fact as a family lawyer I’ve found most court applications for access usually precede holidays such as summer, or Christmas holidays.

So here are three helpful tips to hopefully keep you and your ex out of court.

First, and foremost, you should ensure, (whatever the agreed access) that the holiday access terms are accurately set out in a court order, Separation Agreement, or other legally enforceable written agreement.

 I know what some of you will say. “I’m on great terms with my ex and we’ve never had any issues around holiday access”.

You’ll just have to trust me when I tell you; unfortunately, it is unlikely that this state of holiday access nirvana will persist indefinitely.

Whether it has to do with your or her “new” partner, or something else, far better to have holiday access terms that you can legally enforce, if necessary, rather than relying on (now) non-existent goodwill.

Secondly, DON”T ACCEPT the phrase “reasonable and generous access”,   (unless modified as set out below.) to describe your holiday access. That’s because such holiday access is virtually impossible to enforce, since your interpretation of “reasonable and generous” may be one half of any holidays, while your ex believes one day during the holidays is “reasonable and generous”.

Remember, if you and your ex can’t agree on a certain interpretation it will be left to your judge to figure out holiday access, always a potentially risky (and totally unnecessary) gamble.

Thirdly, to minimize holiday access disputes you should include what is known as “specified access”. This means clarifying the holiday access terms, for example does it mean the school Christmas holidays, ie two weeks, or just the statutory holiday?

In addition, if there are other holidays or occasions of special importance to you and your new family, ie Fathers/Mother’s day, children’s birthdays, etc, these special occasions should also be defined.

Follow these three tips and you’ll improve your chances of avoiding the holiday blues!

How to Plan the Work and Work the Plan!

For most parents what happens following separation can prove to be a hugely costly, stressful, and frustrating challenge.

Especially, if parents don’t happen to share the same views regarding on-going parenting arrangements and you can find many such parents throughout our family law system.

And inevitably, the ones who suffer most are the children.

However, interestingly, as a long time family lawyer I often find that p things can often “morph” into bitter, hotly contested disputes, because of a simple misunderstanding, or lack of basic information.

Perhaps this reaction shouldn’t be surprising considering the emotional context and the often difficult, or absent, communication between separated parents.

That’s one of the main reasons, as reflected in this blog and my meet-up kitchen table divorce support group, that I am a dedicated advocate for improving the state and nature of contact and communication between separated parents.

And that`s why I`m a firm believer and supporter of any tools which can facilitate constructive dialogue between parents, such as the parental planner (www.parentalplanner.com).

It`s a practical planner which can be used by both parents to not only record basic child related information, ( ie doctors, teachers etc) but to plan, by way of a calendar, future activities, events, and special occasions, and identify areas which need further discussion. It also enables parents to record expenses incurred on behalf of a child, an often disputed issue.

Of course what this, or any other planner, really needs to work effectively, are two committed parents, not two parents who should be committed!

Let me know how this works for you and your ex.