Ten Myths About Separation and Divorce

Myth 1: Divorce is Too Easy

I have helped hundreds of families through separation and divorce and can say that none of my clients felt that divorce was "too easy". It is a painful process. Everyone struggles through it - whether the marriage lasted 45 years or two weeks (I have helped clients through both extremes). Even those who initiate the divorce ruminate over their decision for about 5 years before they actually move forward and they too go through the same emotional stages of divorce. Divorce is akin to a death in the family. It is tough. 

Resolution of the issues is not easy either. If you end up in Family Court, it can take 1 to 3 years to achieve a resolution and many, many thousands of dollars. If you use the Collaborative Team process, resolution is faster and cheaper but there are always bumps in the road. Separation and Divorce is not easy. Make sure you have a good lawyer helping you. 

Myth 2: Women Always Win in Family Court

Ask any woman who has been in Family Court and they will tell you they don't feel like the "winner". Most women financially suffer more than their husbands after the marriage and end up with more responsibilities caring for the children. More work and less money. It does not feel like a victory. 

Myth 3: Men Can Never Get Joint Custody in Family Court

There is a growing trend among judges to start with the assumption that it is in the best interests of the children to order joint custody. Except in high conflict cases or where the parties cannot communicate effectively ever, joint custody is becoming the norm. Joint custody means you will make decisions related to the children together. It is not about the children's schedule with each parent. That's a different issue altogether.

Myth 4: Children of Divorce Always Suffer

Children suffer when they are in the middle of the conflict between their parents, regardless of whether the parents stay together or get a divorce. In fact, often the divorce leads to less fighting by the parents which creates a better circumstance for the children. Children of divorced parents often develop greater resilience to change. 

Myth 5: Marriage has Always Been Part of The Christian Tradition

It wasn't until the year 1215 that marriage became part of the church "traditions". In fact, at that time, divorce was prohibited by the divorce except in circumstances of church-sanctioned annulments. A great book that includes a history of marriage is "Committed" by Elizabeth Gilbert.

Myth 6: Collaborative Process is Only For Simple Cooperative Case

The Collaborative Process (CP) is the best way to resolve family law issues. Even the most difficult cases can be resolved using CP. The advantage to CP is that you have a team of professionals committed to achieving a resolution. The Family Coach can help navigate you through the emotional stages of divorce and help resolve issues related to the children. The Financial Specialist can help resolve the financial issues without a battle. The lawyers offer advice and have special skills to overcome impasse. Mechanisms can be put into place to balance the playing field between clients. On the other hand, Family Court often fuels the fires of discontent between the parties. Collaborative Process works for even the most difficult cases. 

Myth 7: Common Law Relationships and Marriage Are The Same

When you live together in a relationship akin to marriage (but you don't formally get married), you are common law. That does not mean you share equally in the division of property acquired during your relationship upon separation, just like if you were married. Common law couples have to prove that that they contributed to acquisition, preservation or maintenance of property to obtain an interest in it. It certainly is not automatic and in fact is an "up hill battle" in most cases. 

Myth 8: I Will be Vindicated in Family Court Will

Judges don't determine whose fault it was that the marriage ended. This is irrelevant to the judge. They are just looking at the facts of the case and making decisions based on the state of the law at the time. Even if your spouse committed adultery, it won't affect the equalization of property or the issue of spousal support or child support. It won't even affect the issues related to the children. 

Myth 9: If I Leave the House, I Can Be Charged with Abandonment

There is no charge of "abandonment" for leaving the home when you separate. If you leave your baby at the mall, that is abandonment and you will be charged criminally. I recommend that either you or your spouse should leave the home as soon as possible after it is determined that you are separating. Leaving the home avoids a potential escalation of the tension. It is best you have determined a schedule for the children before you leave so that you can tell the children, together, when they will see each of you. Remember to take with you your personal items and any agreed upon items. If there is some disagreement about the household content, walk through the home with a video camera so you can remember what is in the house and you can negotiate the items later. If there is no agreement regarding the children's schedule with each parent, you may want to stay in the home until resolution is achieved. In any case, there is no such charge as "abandoning the matrimonial home" in Ontario. 

Myth 10: Lawyers Make Things Worse

There is a new type of family law lawyers who really want to help you get a resolution of your family law issues in an cost-effective, timely, respectful, confidential manner so you can get on with your life. These lawyers are called Collaborative Practice lawyers and they help minimize the pain of your divorce.  They don't make things worse. They make them better. 

 

  

Settlement Meetings: Getting Your Divorce Resolved

Do you want to save money and get through your divorce with as little pain (financial and emotional) as possible? Okay... dumb question... everybody does.

The challenge is "how?"

"Negotiate" is the simple answer but how do you negotiate with someone you don't trust, respect and can't communicate well with? Some lucky few are able to negotiate on their own but most people need some help.

Anne Shale wrote an excellent blog in the Ohio Family Law Blog that extols the benefits of the four way meeting in which both parties and lawyers meet to discuss, negotiate and resolve the issues.

Anne suggests the following benefits of negotiating through four way settlement meetings:

Savings of money: Litigation is expensive!  If all disputed issues are to be litigated or “tried” before the Court, there may be hourly fees to be paid for one (1), to two (2), to three (3) days of trial time.  Multiplying the hourly rate of your counsel ($150.00 to $250.00+ (per hour) [ed. in Ontario, the cost is between $250 to $500 per hour]  times one eight (8) hour day of trial reflects that you could easily incur attorney fees of $1200 to $2000 per day for the length of the trial.  If matters could be resolved or even partially resolved with a settlement conference, there will be a savings of money!

Savings of time: Time is “money” is often stated!  Domestic relations cases can be resolved over time by attorneys sending various settlement proposals back and forth by facsimile, scanning and email, or ordinary mail.  However, if the parties and their counsel elect to have a settlement conference, significant savings of time can be realized. The case might be “settled” or “resolved” quickly rather than over months of time.

Peace of mind: Going through a divorce or a dissolution is an emotional and sometimes “gut-wrenching” process.  Parties often experience physical symptoms of distress and anxiety in not knowing how the case is going to be “resolved”.  With resolution of disputed issues, the parties can experience peace of mind in knowing what is going to happen and how things are going to be resolved providing to each of them some “closure” without the discomfort,  angst, and expense of a trial.

Narrow the issues to be “tried” before the Court: Even if a settlement conference or conferences are not fruitful in resolving all issues, if some issues can be “settled” or “resolved” before the final hearing or trial, expenses of time and money can still be saved.  For example, if the parties commenced a settlement conference with six (6) disputed issues, to wit: (1) custody of the children, (2) parenting time schedule, (3) disposition of the marital residence, (4) division of retirement assets, (5) division of household goods and furnishings, (6) payment of marital liabilities, if any issues can be resolved at the time of the settlement conference, time and money can still be saved!

Even better than the simple four way meeting is the Collaborative Process. In this process, the parties and lawyers agree in writing that they won't go to Court and they will work together to find a resolution of the issues together. Four way meetings no longer are intended to simply narrow the issues: there is a commitment to resolving issues.

If an impasse occurs, there are many ways of overcoming it such as getting experts to offer opinions, or by asking the Family Coach to help resolve parenting issues or the Financial Specialist  to help resolve the financial issues. Ultimately, you can use arbitration (you jointly hire someone to act as the judge who will make an order which is enforceable like a court order).

Even if you do not choose the Collaborative Process and end up in court, you will be forced to negotiate. About 97% of family law cases are resolved by agreement. The problem with negotiations as part of the court process is that you are negotiating in a pressure cooker - the court house. It is much more costly as there are so many more procedural steps and delays, and you must proceed according to the court imposed time lines. Nobody likes the court process. It should be seen as the "last resort".  The Collaborative process is much better.

Settlement meetings are magical. When two people who really want to get a resolution sit together with their settlement-oriented lawyers, it is amazing. Resolution of even the most difficult issues can be achieved. There are often bumps in the road but that's normal. In the end, you will have an agreement that you helped craft and it will be achieved in a timely and cost-effective manner... even if you still don't respect, trust or communicate well with your ex.

How To Divorce in Barrie, Ontario

Is your relationship over? Have you moved out and now want to resolve the issues? Maybe you have been apart for a while and just want it finalized? You want a divorce!

A divorce is a piece of paper signed by a judge that terminates the marriage. You need it if you want to get married again but before you get a divorce, you first need a separation agreement. It is a legally binding contract between you and your spouse settling all of the issues: the children's schedule, the support and the equalization  and division of property.

The separation agreement is binding even after the divorce so is a very important document indeed. It will govern your relationship forever.

There a few steps to take immediately but eventually, you need to tackle the big issues. Resolving the issues can be challenging. There are six processes you can use to achieve a settlement:

1. Kitchen table: You negotiate an agreement on your own. You bring it to your lawyer who then creates the separation agreement. This process is for very amicable separations.

2. Mediation: You and your spouse work with a neutral mediator who helps you negotiate an agreement. You bring it to your lawyer who then creates a separation agreement.

3. Collaborative Process: This is a very effective process that keeps you and your spouse out of the clutches of the court system. The entire process is focused on settling the issues. This process works extremely well and is my favorite process. Even difficult issues can be resolved Collaboratively. It is cost effective and clients really love the results. There are a lot of advantages to this process.

4. Cooperative Process: You and your spouse each have a lawyer and you work together to resolve the issues.  This process can work effectively but runs the risk of leading to court (not good). Some times it can be cost effective if settlement is achieved but other times the costs can spiral out of control when you end up in court or arbitration. In Collaborative, court is not an option.

5. Arbitration: This process is similar to going to court except that you and your spouse choose the person who will be the judge (called the arbitrator). S/he has the same powers as a judge. The process is more expensive than the others (except court) and you give the power to resolve your family's issues to the arbitrator. Wouldn't you rather resolve them yourself?  

6. Family Court: Court is the most expensive process, takes the most time, is the least predictable and increases the conflict and animosity. Ultimately, a decision will be imposed on you by the judge.  Most clients are unhappy with the process and the results. Here is a full explanation of the court process in Ontario. We see Court as the last resort  so we only go when the other side just won't negotiate in good faith.

Once you have settled the issues by way of court or a separation agreement,, you can get a divorce. We do dozens of divorces for clients each year so we can do this for you. If you want to try to do yourself, here are the steps.

The first step: The first step involves completing an application for divorce (court papers). The application has to be issued by the court so that you have a court file number. The application is then served on your spouse. Assuming s/he does not contest it (if a separation agreement is in place, there is nothing to contest), then after 30 days you can file an affidavit for divorce (more prescribed court papers) asking the judge to issue the divorce. The file will then sit in the court house and wait for a judge to review it. At the time of writing this article, it is taking about 6 to 8 months to get a divorce because the court system is so backed up. Once the judge has reviewed and approved it, you are divorced. You can then get a certificate of divorce issued thirty days later.

When can you divorce? In Ontario, most people get a divorce on the basis of having been separated for one year. The date of separation is the date when one of you told the other that the relationship is over. This can occur prior to the actual physical separation. It is also possible to get a divorce on the basis of adultery or physical or psychological abuse.

One word of caution: A judge does not have the power to grant you a divorce unless there is proper child support being paid in accord with the Child Support Guidelines.

There are many reasons why people proceed with a divorce. Are you ready to seek a divorce?

Whew... now you are divorced... and you can try it again! Good luck. Second time is a charm! I know from personal experience! (See how happy I am now!!)