5 Mistakes Made in Divorce Proceedings

Today's guest blogger is writing about the 5 mistakes made by people who are in family court. While the advice is sound, it reinforces to me how undesirable it is to be in Family Court. It really is an awful experience. But, alas, if you are in Family Court, heed the following good advice... or better yet, find a lawyer who specializes in Collaborative Practice and get out of the litigation process.

At Galbraith Family Law, all of our lawyers are trained in Collaborative Practice. We do our best to keep you out of Family Court and support you to resolve your divorce issues efficiently, minimizing the pain. Thanks to Ken Myers for the following article. 

Although it's never our intention to file for divorce when we say our vows, sometimes people just can't be together in matrimonial bliss. Sometimes, the divorce proceedings can get a bit messy which could cause great strain on one or both parties. Of course, this all centres on why the divorce is happening in the first place.

Too many times have the actions of one during a divorce severely crippled the other financially and/or emotionally. When talks of this stressful time become a serious situation, there are things you need to do in order to prevent your significant other from taking advantage of the situation.

1. Financial Evidence - One of the most important pieces of evidence in a divorce proceeding could be the financial activities of your household as a whole. Any record and receipt of monetary transactions and bank accounts should be copied and safely stored. Any amounts in joint bank accounts should be closely monitored and recorded as well as one spouse may have to pay the other as per the final judgement.

2. Settlement Proposals - During divorce proceedings, a spouse's lawyer could provide a settlement proposal in order to reduce the time spent in courts which can increase your budget for your legal fees. Out of anger or frustration, many of these proposals are thrown out by the party for a variety of reasons. When dividing the assets, you should expect to lose something. Dismissing these proposals too quickly could cost you more in fees than you would have lost in the proposal in the first place.

3. Children as Weapons - Many times, a spouse will threaten the other to deny visitation to the children during a divorce. What you need to realize is that this is an empty threat that will not be upheld if you are indeed a good parent. Regardless of how much the threat may cut you to the bone, keep your cool. During the proceedings, the courts will determine if that threat has any validity. Unless you are a parent who constantly endangers your child, there is absolutely nothing to worry about. Let the spouse blow off as much steam as they want.

4. Debts - Sometimes, dividing debts accrued by a couple can be a difficult task to manage. Neither one of you want to pay the bills of the other. A compromise may need to be acknowledged or the courts may assign what is paid by whom. This could greatly depend on the income of each spouse and the total number of bills. You will need evidence that shows a specific bill would have been accrued by your spouse regardless of your marriage. At any rate, the bills will need to be paid and someone will need to pay them.

5. Life After Divorce - Before you have committed yourself to a divorce, you should have taken the time to evaluate if you are able to survive on your own or not. You should never assume anything and having a plan for re-building your life can save you a great deal of trouble in the short-term. The most important aspects to consider are home and income.

Divorce can feel like hell on Earth to some and a blessing to others. In order to prevent the former, you should always protect yourself the moment a divorce is inevitable. If the situation is created from a bad set of circumstances, timing could be very important. Don't let your significant other take advantage of you.

Guest Author Bio:

Ken holds a master’s in business leadership from Upper Iowa University and multiple bachelor degrees from Grand View College.  As president of  morningsidenannies.com, Ken’s focus is helping Houston-based parents find the right childcare provider for their family. When he is not working, he enjoys spending time with his three children and his wife.

Separation Agreements: The Devil in the Details

There is a saying... "the Devil is in the Details".... meaning details that are overlooked can cause problems later. No doubt this is true when drafting a separation agreement. Attention to detail is essential. 

The top ten big issues that need to be resolved are: 

  1. Where will the children live? 
  2. How much time with the children spend with each person? 
  3. How will holiday time be scheduled with each parent? 
  4. How much child support will be paid? 
  5. Are there any extraordinary extracurricular activities that should be shared costs? 
  6. Is there an obligation to pay spousal support? How much? How long? 
  7. How will the property be divided? 
  8. Is there an equalization owed by one person to the other to equalize the property division? 
  9. Do we need to maintain life insurance to protect the support obligation? 
  10. Should the extended health care insurance coverage continue for everyone? 

Robert Hues of Ohio wrote an excellent blog where he lists some of the many details often missed in separation agreements. Here is Robert's list: 

  1. Garage door openers 
  2. Gate remote controls
  3. Extra keys to car and house
  4. Security codes
  5. Hotel credit card and airline points
  6. Utility and other deposits
  7. Tax and insurance escrows
  8. Car tag credits
  9. Overdrafts on joint checking accounts
  10. Dates to carry through insurance coverages
  11. Attorney’s fees paid with joint funds
  12. Real estate escrow account refunds
  13. Important days not addressed in the Court’s Parenting Time Order
  14. Season ticket rights
  15. Country club membership and club access
  16. Storage unit details
  17. Dividing and copying family photos
  18. Copying documents, pictures and files from the family computer
  19. Providing change of address notification to Bureau of Motor Vehicles, support enforcement agency, credit cards, magazines, post office, etc.
  20. Cell phone account restructuring
  21. Review of auto insurance coverage
  22. Close joint credit cards
  23. Update estate planning documents and review beneficiary information
  24. Stock options
  25. Future health insurance coverage and cost    

We could add to Robert's list indefinitely. Here are some more details to consider: 

  1. How and when will new partners be introduced to the children? 
  2. How will we celebrate the children's birthdays? 
  3. Will spousal support continue to be paid if the recipient gets married or lives with someone? 
  4. How will we share the costs of post secondary education?
  5. Who will hold the passport and health insurance cards of the children? 
  6. What happens if one spouse wants to move far away and we have children? 
  7. Can both parents attend the sports events of the children and parent/teacher interviews together? 
  8. How will we divide the books and CD's?
  9. How do we divide heirlooms from one side but given to us during our marriage? 
  10. Will the children be able to transport their items between homes? 
  11. Who pays for recreational ports equipment used in both homes? 
  12. Who gets the car seat and children's furniture and children's toys etc.? 

The list of details is endless. Although it is great idea to deal with as many details as possible so as to minimize future conflict, some issues will come up that you did not discuss. Perhaps the best we can do is develop some principles for behaviour and resolving conflict. Here are some ideas: 

When issues arise, we will do the following: 

  1. We will treat each other the way we would like to be treated... even if it may not always seem to be reciprocated. 
  2. We will not attribute negative intention to the other person but rather assume the best. 
  3. We will always discuss issues respectfully and politely. 
  4. We will not allow ourselves knee-jerk responses but rather will "sleep on it" before responding. 
  5. We will not engage or expose the children to our disagreements. 
  6. We will negotiate respectfully. No interruptions. No yelling. No name calling. 
  7. We will fully disclose all documents and information during negotiations. 
  8. We will both compromise. 
  9. We will seek to meet the core concerns of both parties. 
  10. We will not take advantage of mistakes by the other party.
  11. We will not sweat the little stuff. 

Paying attention to the details is an essential skill for a family law lawyer because one of our mandates is to minimize future conflict for our clients. Our lawyers will work with you to help create a separation agreement that meets your needs and keeps the devil in his place. 

New Wife and Ex Wife: A Complicated Relationship

All relationships are trying at times but perhaps one of the more difficult ones is between a "new wife" and the "ex wife". (Probably this is true for the "new husband" and "ex husband" too.)

Donna Ferber (pictured on the left) offers another great blog in which she explores this challenging relationship.

Donna writes: 

Judged as guilty before even tried, these women are pitted against each other by circumstance. Stereotypes abound; the first wife was a “crazy nagging bitch” and the second one “a cheap slut”!

Unfortunately, these stereo types often eclipse the potential for a positive relationship; these women are preprogrammed not to like each other by societal misconceptions. In truth, had these women met under different circumstances they might have been friends. 

Donna has it right. 

There is a natural inclination to think poorly of the new spouse by the former spouse and vice versa. In most cases, the dislike is petty and without merit. But, alas, emotions are without logic. Emotional responses to other people can overwhelm our logical side. Intellectually, we may want to judge the other person on their merits but our emotional side won't let it happen. 

Donna explores various reasons why the "ex" and the "next" may have challenges making their relationship work. 

Here is a surprising story about a woman who was accepting of her ex husband's new life partner. 

I once represented a woman whose husband had discovered that he was gay and left her for man. This other man was involved in the lives of their children yet my client was not at all bothered his new role. I asked her how it was that she was so accepting of this new relationship and person. Her response was interesting. She said something like "I am a woman. I can't compete with a man. It's apples and oranges. Now had he left me for another woman, I would have hated the bitch and wanted to scratch her eyes out!" 

Who knew? 

Relationships are complicated, surprising and challenging. 

If you are an "ex" or the "next" know that you are not alone in your struggle to maintain a positive relationship with the other. It's a challenge. 

If you are the one in the middle, understand that the relationship of the "ex" and the "next" is not an easy one for anyone. Don't fuel the fire. Just be understanding.

This too shall pass... hopefully. 

Parental Planner: A New Communications Journal for Separated Parents


The Parental Planner is a new way for separated parents to communicate with one another. It is a essentially a communications journal that is passed between parents at the time of exchanging the children.

The advantage to using a communications journal is that it avoids face-to-face confrontations. You can also ensure all the pertinent information is exchanged. It also serves as a record of communications between parents. It helps parents who are separated to try to maintain some consistency in their parenting between homes. I also like that it has plastic folders in it so that documents such as health insurance cards can go back and forth easily. 

It is best to keep it available so that you can jot information into whenever the need arises. 

Although it not intended to be shared with the children, it should be written in such a way that if your children do stumble upon it, you will be proud of what you have written in it. So don't criticize the other parent. Always be respectful of one another in your communications. 

Don't forget to also share positive events in the children's lives such a milestones and achievements. 

If you are angry at the other parent, put the journal down! Let your steam off some other way and then, when cooler heads prevail, you can write in the journal. 

The Parental Planner is simple and yet comprehensive. 

Learn more about it at www.ParentalPlanner.com

And it's Canadian! 

 

Why Do I Need To Do A Sworn Financial Statement?

Everyone hates having to do a sworn financial statement. This is a court form used in Ontario to list your assets, debts, income and expenses.  It is long, cumbersome and, frankly, a pain to complete. If your case is in Court in Ontario, you must complete the form. The Rules require you to complete it and the court clerks won't even open your court file without you filing a sworn financial statement.

If you aren't in court, I don't blame you if you don't want to complete it.

As your lawyer, we ask you to do a financial statement to ensure that you are protected. Yes, to protect you! We want you to fully disclose your assets and debts on the date of separation and date of marriage to ensure that your spouse cannot wiggle their wait out of the agreement, claiming that you were hiding assets. The Family Law Act allows the Court to "set aside" (which means not enforce) a separation agreement if there has not been full disclosure. 

The financial statement is an easy way to ensure that there has been full disclosure. It is like a checklist for lawyers. 

We ask your spouse to provide a sworn financial statement for the same reasons. It is an easy way to ensure we have a complete financial picture from him or her too.  

Once we have a complete financial picture, we can advise you as to the range of outcome should the matter proceed to court. In other words, we can give you legal advice. Without complete disclosure, we can't give you advice: we are just guessing.

Lawyers can get into big trouble with the Law Society if we give advice based on guesses or assumptions that turns out to be bad advice. Okay... you got me... we are also covering our own butt when we are asking for sworn financial statements. 

Disclosure is Essential

It isn't the financial statement itself that is important - what is important is that there is full disclosure. It's just that the financial statement makes it easy. 

A recent case before the Ontario Court of Appeal, known as Ward vs Ward clearly states that the exchange of financial statements is not necessary but full disclosure and knowledge of the other person's financial circumstances is essential. In that case, the parties exchanged some documentation with the assistance of the family's accountant. Financial statements were not completed but there was full disclosure and knowledge of each other’s financial circumstances.

The court describes the disclosure process in that case as follows:

“...neither party filed a financial statement, nor was one required under the terms of the process to which they agreed. While this did not diminish the obligation to disclose, in this case, the parties relied on the collaborative law process and other avenues of disclosure, including net family property statements and information from Mr. Wetstein [the family friend and accountant]”

In the end, the Ontario Court of Appeal determined that the husband's disclosure and the wife's knowledge of financial circumstances of the husband were sufficient even without sworn financial statements exchanged. The Court refused to set aside the agreement reached.  

Lawyers often use the financial statement because it is easy. It lists all of the categories of assets and debts so you don't miss disclosing something important. In our law firm, we insist on backup documentation to verify every value in the financial statement. It is the backup documentation that is important and fulfills the obligation to disclose. 

Collaborative Cases

In Collaborative cases, the Financial Specialist works with the clients to obtain a complete and accurate representation of the financial circumstances of the parties, usually without the use of a sworn financial statement. The Financial Specialist does a report and attaches the backup documentation for every value. Both lawyers ensure that their client has fully disclosed everything. Equally important, every lawyer must review what the other client has provided to ensure s/he has provided full disclosure. 

In Collaborative cases, as lawyers we always carefully review the Financial Specialist's report with our client to ensure it is accurate. Ultimately, the lawyers will ask for a sworn statement from each client stating that they have fully disclosed their assets, debts and income and that the Financial Specialist's report is accurate and complete. Alternatively, the lawyers will add wording to the separation agreement that states both parties are warranting that they have fully disclosed everything and that the Financial Specialist's report is accurate. Either way works. 

Full disclosure is essential. If you are trying to hide assets or income, we won't be your lawyer. We don't play those games. 

If you don't like having to provide full disclosure, we get it. You are not alone. Complain all you want. We have big shoulders. We want your agreement done right and made to last so just get it done. It’s for your own sake. 

 

Financing Your Divorce Litigation

The New York TimesCan you afford to sue your ex for your share of the property in your divorce? 

There is an article in the The New York Times  about a new business in Hollywood that will finance your divorce in exchange for a piece of the settlement. It is intended for people with substantial assets but poor cash flow. This enables the cash-poor person to pursue their fair share of the property. 

I was at first shocked by this by why not? I don't think it will cause frivolous law suits.