22
Apr

The “L” Word

Just what do you do for a living?

It’s one of the first routine questions asked whenever two strangers meet for the first time. It’s about as basic and uncomplicated as it gets.

“What do you do for a living?”

But it’s also a question that causes me all sorts of anxiety.

Considering the negative reputation of lawyers these days (has there ever been a time when lawyers weren’t ridiculed and the subject of some really funny jokes?) ranking somewhere between politicians (mostly lawyers – not helping) and used car salespeople (unfair to (most) salespeople) I hesitate to acknowledge that I’m a lawyer.

After all, I’ve already heard all the jokes, (including the ones about the rats/sharks/ lawyers, etc.)

So rather than just use the “L” word I could mention that I’m a “family lawyer”.

While a “family lawyer” sounds warm and fuzzy, it’s really just a nicer way to say that you’re a paid mercenary ( ie divorce lawyer) whose task is to achieve legal victory for your client, and somehow emerge victorious despite the incredible costs and related emotional trauma.

Besides, chances are ( better than 50%) that the person I’m talking to has either experienced the ordeal of separation or divorce as an adult, or endured a miserable childhood as the pawn of an archaic, and confrontational family law system of justice.

Who do you know who has any kind of fond memories of their divorce, or their divorce lawyer?

Of course, I could try and soften the “L” word by mentioning that I’m also a trained and qualified “collaborative divorce lawyer”. That’s a lawyer who’s also trained as a mediator, and commits to supporting their clients by attempting to resolve outstanding matrimonial matters through good faith negotiation (ie collaboration) with opposing counsel, rather than litigation.

But frankly “collaborative divorce lawyer” actually only sounds as oxymoronic as “military intelligence”.

The consequence of which would no doubt be a bewildered look to what is otherwise a simple and straightforward question.

All of which explains my standard response whenever I’m asked what I do for a living.

“I’m looking for work, what do you do for a living?”

 

 

Category: General  Tags:  Leave a Comment
11
Mar

Improving Your Odds (of Success)!

 

When teamwork can reduce the gamble!

When life deals you the crappy cards of separation or divorce you have several options. You can decide to simply fold. Or, you can decide to play the hand you’ve been dealt, and try your best.

In my experience as a family law lawyer trying your best means actually being willing and able to make the most of your partnership with your lawyer. And believe me when I say that if you choose not to, retaining the very best lawyer will not help your case.

Here’s some advice to improve your chances in this all important match.

Early is Best

As I’ve often stressed in the past the sooner you get effective legal advice the better.

Here’s why.

On several occasions I’ve been consulted by parents, who agreed to accept supervised access, in either a consent order or written agreement (usually because it was the only access they were being offered), before seeing a lawyer.

Unknown to them was the fact that changing access from supervised to some other form of reasonable access, can be extremely challenging, squandering significant time, and cost. Expecting any lawyer to change access terms overnight in the face of determined opposition supported by a supervised access order or agreement is virtually impossible.

Always be Prepared

When you are asked by your lawyer to obtain documents or provide explanations there is likely a very good reason. Failure to produce such material or information can seriously jeopardize your lawyer’s ability to properly prepare for, and effectively represent your best interests.

Follow Orders

Some clients, to their peril, treat the terms of court orders more like suggestions, rather than binding conditions. Bad mistake.

There are few things which anger judges more, or hamstring your own lawyer worse, than choosing to disregard a court ordered term.

I recall a former client of mine who chose to overlook a term in an earlier order. Even though we were now in court dealing with an altogether different matter the judge decided, in a not so favourable judgement, to send the message to the client that court orders are not to be trifled with.

So consider your family lawyer as your partner in this potentially life changing gamble.

If you choose otherwise in the biggest gamble of your life there may be no home to go back to.

 

Category: Family Law  Tags:  Leave a Comment
11
Mar

Words You Don’t Want to Hear (from Your Lawyer)

Really understanding what your lawyer means!

“That’s a unique (you can also substitute “intriguing” or “interesting”) legal matter,” says your lawyer, smiling wryly.

While you’re sitting there smugly assuming this must mean something good, (after all it appears your lawyer is highly entertained) you’d be wrong, and here’s why.

Words such as “unique, intriguing and interesting” when uttered by your lawyer simply means that he or she is relatively (or completely) unfamiliar with the legal issues raised by your family law case.

There is absolutely nothing wrong with this since your lawyers can’t be expected to be an expert at everything. But this could also mean that your lawyer may need to spend their time, and your money, to get up to speed to understand how to handle this particular issue.

Don’t hesitate to ask your lawyer about their particular experience, and if it appears lacking, I suggest that you obtain a referral to another lawyer who has demonstrated expertise in this area.

“Oh”, sighs your lawyer, “your spouse has hired Darth Vader as counsel.”

Anytime your lawyer emits an exasperated sigh upon learning the name of your spouse’s counsel, I suggest you ask for particulars.

It could be that your counsel has a past history with this lawyer which has become personal, never a good thing to have two lawyers who personally dislike each other, it can only end badly for both clients.

It may also mean that the other lawyer has a reputation for being unnecessarily difficult to deal with, such as always favouring litigation over reasonable negotiation or mediation.  If this is the case far better for you to know, and prepare, at the start, for what will likely become a protracted and costly legal proceeding.

“We’re looking for trial dates.”

Going to trial is virtually always the worst possible method to resolve legal problems, including your family law case.

That’s why it’s a very good idea, long before your lawyer talks to you about trial dates to discuss, and explore, alternatives such as mediation or collaborative divorce. In fact, far better to see where your lawyer stands on such alternatives before you decide to retain them.

Now that you know these “words of wisdom” pass them on!

 

 

 

 

 

 

 

 

Category: Family Law  Tags:  Leave a Comment
20
Feb

Just Watch Me – Sleep Soundly!

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!

Category: do it yourself separation agreements, Family Law, Kitchen table negotiations, Representing Yourself  Tags:  Leave a Comment
30
Jan

ADDICTED TO LOVE!

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!

Category: Collaborative Divorce, counselling support, Family Law, Mediation  Tags:  Leave a Comment
16
Jan

Exit Signs

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!

Category: Family Law, initial consultation  Tags:  Leave a Comment
04
Dec

BIG OOP’s!

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.

Category: do it yourself separation agreements, Family Law, General, initial consultation, Kitchen table negotiations, Property/Assets  Tags: ,  Leave a Comment
07
Nov

Faster and Furiouser!

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.

Category: Family Law  Tags:  Leave a Comment
30
Oct

Upstream Without a Paddle

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!

Category: counselling support, Family Law  Tags:  Leave a Comment
24
Oct

Zipping Your Lip

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!

Category: Collaborative Divorce, Family Law, Kitchen table negotiations  Tags:  Leave a Comment
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