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!

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!

Resolution #2 – Take Care of Business!

While you’re following my advice to care of your emotional needs arising from your separation or divorce (see Resolution #1) you also need to take care of some very important business.

In your case this means not only finding about your legal interests and obligations, but establishing some reasonable ground rules, until more formal arrangements can either be negotiated, or litigated.

At this very early stage, I find there are typically two reactions or approaches, neither of which I endorse for the reasons mentioned. One I call the scorched earth approach, and the other I call the mother Teresa approach.

Under the scorched earth approach one, or both, of the aggrieved parties will engage in a variety of “payback” behaviours. This could include everything from denying access, to stopping mortgage payments. While such action may offer you an immediate feeling of smug satisfaction, you can be certain this feeling will be fleeting, and soon replaced by your frustration that matters are taking much longer to resolve than you figured, and costing much more in legal fees.

I have a great deal of respect for the late Mother Teresa and all of her good works to help the world’s suffering masses. However, her unconditional acts of generosity and kindness should not necessarily be followed in your family matter, at least until you know what you are doing!

 In my practice I repeatedly hear of one or the other spouse, whether motivated by shame, guilt, or ignorance, offering the sky, the moon, and the stars, to their spouse before knowing anything about their own legal rights and obligations.

Once this happens it is extremely difficult to negotiate a settlement which differs from your original (misguided) generosity.

So what do I recommend?

Before talking turkey with your spouse be certain you know your legal interests. Furthermore, until a settlement can, hopefully, be negotiated, simply continue to maintain the status quo, whether financial. or related to the kids.

If you keep these resolutions, I forecast, you will vastly improve your legal, financial, and emotional prospects for 2011, and for many years thereafter!

 How you divorce can effect the future health of your children!

I have witnessed firsthand the emotional trauma caused by separation and divorce on my family law clients. That’s the reason I created the kitchentabledivorce.ca support group, with the help and assistance of my spouse.

However there’s another affected group often overlooked by parents and professionals alike, the children of divorced and separating parents. Just how affected are these children?

Shockingly, according to a recently released Canadian report, these children are much more likely to suffer, as adults, from serious, adverse health conditions, such as strokes.

To date there is no explanation for such startling results. Although, some researchers have suggested that the emotional and psychological shock caused to the children of divorce somehow impairs their body’s ability to handle stress, predisposing them to develop stress related diseases as adults.

So what’s the message for separating and divorcing parents?

As readers of this blog know well, I have always advocated exploring lower stress, (and cost) alternatives, such as family mediation, or collaborative divorce, as the preferred first choice, before resorting to adversarial court proceedings.

But just as importantly, even after the legal dust has cleared, parents need to put their differences aside, establish a co-operative parenting plan, and focus on their children’s long term best interests.

Just consider it making healthier choices for your children!

My client and I were meeting around the courtroom table across from my client’s former spouse and her counsel. Apprehension and low expectations were definitely the order of the day. If today’s meeting failed to resolve the seemingly intractable, legal issues, trial dates would inevitably be scheduled. The judge summed up the client’s legal situation with a simple, yet accurate analogy.

He compared the court case to driving a car. At the moment each client had a hand on the wheel, and could influence the direction of the car. We lawyers were sitting in the back seat requiring financial contributions from time to time, in order to sustain the car’s momentum.

Should either client decide to take his or her hands off the wheel, the direction of the car would become the sole function of the trial judge. By this time both clients would be stuffed in the trunk of the car.

At the end of the trial when the trunk is finally opened, the clients could emerge only to find themselves in Winnipeg!

I’m confident that the judge was not disparaging Winnipeg (after all I was born there-but I digress).  The point being, there is generally no such creature as a happy family law client at the conclusion of a family trial, only parties suffering from varying degrees of dissatisfaction. That’s because trial judgments rarely achieve the results that either party set out to accomplish, notwithstanding the financial and emotional price.

I am pleased to mention that our matter settled that day, without the need for trial.

Even if you believe that court remains your only option, I encourage you to explore alternatives to court, such as retaining the services of an experienced family law mediator, or a collaborative divorce lawyer, such as myself.

Something else to remember. When I walk out of the courtroom at the end of a trial, my experience with the judge is over. Yours will last a lifetime. Your family’s future is far too important to leave in the hands of anyone, other than yourself.

So keep your hands on the wheel. Or you could end up in Winnipeg!

Two weeks ago Statistics Canada released a Report with some scary statistics for divorcing and separating couples. While the report did mention an overall decline in divorces for the period from 2005 to 2008, what caught my eye was the fact that 25% of divorce files took 2 years, or more, to conclude, which is downright scary!

Of that 25% there are no doubt spouses, already relieved to be living separate and apart, where there is little motivation to pursue a divorce. There will also be those who decide, for financial and/or emotional reasons, to put the divorce on hold.

But what about everybody else? And more importantly, if you are separating, or separated, what can you do to avoid becoming enmeshed in divorce proceedings for 2 years or more? Here are some helpful tips.

Firstly, you need to understand the divorce process, and your legal rights. Let me begin by dispelling one of the most common myths I hear in my family law practice. Namely, obtaining a divorce is easy, all that you and your ex need to do is (typically) wait a year, and then file for divorce, or have a divorce service file the papers. Since you both agree to a divorce, it’s no problem.

Sorry, it doesn’t work that way. You and your ex need to address, and resolve, all outstanding legal matters, ie custody, support, division of assets, etc, before, a judge will grant a divorce. So, the sooner you start this process, the better, and don’t schedule any marriage dates with your new partner in the meantime.

Although as I mention this, I did meet a client last week, who said he had been divorced for several years, without having matters finally settled. This is extremely rare in my experience, and while I don’t know for sure, it suggests that the divorce service which filed his divorce papers may not have followed proper procedures. In any event because these matters were not settled when they should have been settled, any possible legal impact on this client’s legal rights and responsibilities will need to be re-assessed, resulting in more legal costs and expenses.

Secondly, I encourage you to explore any one of several alternatives to legal action, which, if successful, can drastically reduce divorce time, and cost. Personally, I believe mediation, or my favorite, collaborative divorce can work wonders, even in situations which appear irresolvable.

Lastly, and most importantly, is to remember that any legal proceeding is not the appropriate forum to punish your ex for past misbehavior. In other words, you need to try and keep your emotions, separate and apart, from your legal rights and responsibilities.

If you disregard this last bit of advice any realistic hope of a negotiated, or mediated, settlement will disappear, and you will ultimately leave your future fate in the hands of a judge. And any judge will not decide your legal issues on the basis of a personality contest.

There you have it. Three tips to prevent you from becoming just another scary statistic!

As readers of this column soon discover kitchentabledivorce.ca is all about empowering people to take control of their own family law issues. Or to put it differently, sitting down at a table  with your ex, and/or his lawyer, to attempt to resolve your dispute, almost always beats standing up in court, in front of a judge, to achieve the same end.

That’s because there are always two sides to every story, even though most family clients naturally find their own story the most compelling. In fact even after almost twenty years of representing family law clients I am still finding myself surprised with judicial decisions.

That’s why resolving the dispute between yourselves, at the kitchen table, or in fact any table, if possible, can allow you to control your destiny, and be far less costly, both emotionally and financially.

So here’s an important tip after you’ve arranged to obtain a legal consult with an experienced family lawyer. After all, a legal consultation can often be arranged for little or no charge, and can help you to focus on the critical legal principles, rather than being sidetracked by irrelevant, (as far as the court is concerned), emotional issues.

Make sure you bring to the consultation any legal papers you may have. Just this week I asked someone who was meeting with me for a consultation for a copy of the order, or agreement , she was hoping to vary. Unfortunately, she had forgotten to bring it, which meant it left me virtually guessing as to the kind of change she should be seeking, and even the level of court ie. Provincial or Supreme, that she should be filing it with. All of which meant the value of the consultation process was diminished.

So before you meet with a family lawyer collect your papers, and if you’re unsure what they mean, simply arrange them in order of dates, with the earliest first. This simple technique will enable you, and your lawyer, not only to understand how things started, but hopefully where things are going.

This basic, but critical information, will vastly increase the chance of your having an effective legal consultation, and with it, the power to accomplish your goals!

Here it is after much fanfare- the number 1 question I am asked by separating or divorcing spouses, “Do I really need a lawyer? My spouse says that we should just work it out ourselves and save on lawyer’s fees.”

What this really means is that your spouse has probably already received legal advice and likely been advised that you have significant legal rights. All the more compelling reason to attempt to convince you that you should just settle for what is being offered. After all when was the last time that your spouse was genuinely motivated by your best interests?

In fact to prove that the only interests being considered are those of the spouse trying to talk you of getting good legal advice is the fact in over twenty years of reviewing such agreements, I have yet to find one which was actually fair!! Sadly, for many who believed their spouse and simply signed an Agreement, the damage is extremely difficult to undo.

So just what should your reaction be if your spouse makes such a statement? I suggest telling your spouse that you are capable and competent enough handle your own affairs, including finding out about your legal rights and protecting them.

Now that you’ve heard that taking legal advice from your ex is not such a good idea what next?

Arrange a consultation with an experienced family lawyer such as myself. Bring copies of whatever documents you can in order to calculate both child and spousal support.

The best advice of all, join my kitchentabledivorce.ca client support group for both men and women, which meets every two weeks. If you do you will eventually learn to FEAR NO DIVORCE-especially your own!

KitchenTableDivorce.ca
AND
SCOTT TAYLOR
Family Lawyer / Mediator / Collaborative Divorce Lawyer

Are pleased to present an evening with
DR. MICHAEL ELTERMAN
April 21, 2010
7:00 to 9:00 pm

Dr. Elterman is one of the most experienced, and respected psychologists, in BC dealing with disputes involving child custody, guardianship, access, shared custody, etc,  He has prepared countless Section 15 Reports, and Views of the Child Reports, and is widely acknowledged and recognized, at all court levels in British Columbia, as one of the leading “experts” in this area. 

If you are a divorcing or separating parent, needing helpful advice, or legal information about your parenting situation, don’t miss this unique event.

RSVP required by noon April 19, 2010
For location details and reservations, call 604-534-6361.
$10.00 at the door
Refreshments provided

Visit: kitchentabledivorce.ca for more information on this and other upcoming events.