Archive for the ‘ divorce ’ Category

Zip Your Lip – The Sequel

 

Don’t let loose lips sabotage your success!

 

The kitchentabledivorce approach is one which encourages open, honest and transparent communication between separated spouses as an alternative to costly scorched earth legal proceedings.

 

But there are limits. And as the following real life example demonstrates, talking with your ex before you know your own legal rights can cause big problems when trying to reach a final settlement.

 

A spouse came to see me for independent legal advice before signing a Separation Agreement prepared by counsel for her ex. I reviewed the agreement and advised her that the spousal support terms were grossly unfair considering the long, (25) year nature of the marriage, and the significant disparity in incomes. Husband’s income was roughly six times that of spouse.

 

Not only was the monthly amount of proposed spousal support thousands of dollars less than appropriate in accordance with the Spousal Support Advisory Guidelines, but the term of support was incredibly short (3 years), rather than “indefinite” subject to review.

 

Accordingly, I advised spouse to consider re-negotiating spousal support terms. Spouse appeared initially relieved. Unfortunately, spouse then recalled earlier discussion with husband regarding support. Now faced with the awkward position of either attempting to seek fairness and upsetting ex or accepting grossly unfair terms, she decides to simply accept the inequality.

 

Would it have made a difference, before spousal support numbers were thrown around like cheap confetti, if the spouse had obtained legal advice before talking with her ex? I think it would have provided a critical reality check, resulting in much improved terms of support.

 

So before you meet to sit around the kitchen table to talk legal issues with your ex get some good family law advice to understand your legal rights.

 

It doesn’t require a major financial investment in legal costs, and best of all, you won’t sabotage your future settlement success, or peace of mind in the process.

 

 

 

 

I Got Mediation!

 

Answer to your prayers? If you know the right questions!

 

Family law mediation can be the answer to help some separated parties settle their disagreements.

 

But in my experience as both a family law lawyer and mediator there remains a considerable amount of confusion and misinformation about the process of mediation, and the roles of mediators.

 

Probably once a week I will meet with a separated spouse for a consultation and be told that “my ex and I want to meet with a mediator and have them write up a separation agreement to avoid legal fees”.

 

So just what’s wrong with this approach anyways?

 

Firstly, while some mediators can be family law lawyers (such as me) a mediator need not have any legal background or experience. But regardless the role of a family mediator is not to provide legal advice, or to ensure that your legal rights are being protected, but rather to help resolve disagreements.

 

Some mediators will try and mitigate the lack of prior legal advice by preparing a separation agreement and advising the parties to obtain independent legal advice before executing it. Other mediators will simply prepare a memorandum of agreement and advise the parties to have the separation agreement prepared by legal counsel.

 

In my opinion it is far better to ensure you know your legal rights before attending mediation. If you do there is a far greater chance that any mediated settlement will be in your best interests, (and also no need to advise your aggravated ex that the mediated settlement needs to be re-negotiated because you weren’t aware of your legal rights!)

 

Secondly, before considering mediation you and your spouse should try and discuss what matters may be outstanding in the first place! If there is general agreement regarding the parenting of any children and the division of assets and liabilities there may be no need to retain the services of a mediator.

 

To find out what if any disagreements there may be, I recommend, if possible, that you and your ex first sit down at the kitchen table and review the various issues which need to be resolved. To assist my clients with this process I provide my client with a checklist which can reviewed by the parties, and then used as an outline for the preparation of a separation agreement, (or at the very least identify outstanding issues).

 

Thirdly, once you know your legal rights, and you and your spouse have defined the matters which need to be resolved, is the right time to consider retaining an experienced family law mediator.

 

So if you follow my advice, and ask the right questions, mediation may just be the answer to your prayers!

 

 

 

 

 

 

 

 

 

You’ve Just Been Served – Now What?

Just been served with court documents by a burly stranger on behalf of your former spouse? Now what?

Follow these three simple, but crucial, steps, and discover what you, and your ex, still have in common.

Firstly, take a deep breath and some time to read the documents. But resist the temptation to respond by angrily calling or texting your ex to express your shock and outrage. There are several reasons for this, namely your ex may have no idea what the document actually says, and further the wording will typically be formal legal terminology dictated by your ex’s lawyer rather than your ex.

Secondly, ignore the natural urge to rip up the documents, or file them away, in the hope that if you destroy it, or ignore it, it will go away. It won’t.

Worse yet, in your absence a court can, and will, make orders. Orders which can be far harsher than they would have been if you had prepared a proper response, and also challenging and costly to overturn.

Next, with documents in hand, arrange a legal consultation with a family law professional – Scott Taylor – #102 – 19610 64 Avenue, Langley, 604-534-6361.  Expect to pay anywhere from 30 minutes to an hour or more of legal advice.

Don’t expect a comprehensive review from a harried family duty counsel, or take legal advice from your dentist, or a friend of a friend, whose only family law experience is being divorced multiple times!

Thirdly, following the consultation you will need to prepare , or have prepared ,your  formal written response, possibly also including a claim of your own. If you decide to prepare your own documents, at the very least, have them reviewed by a family law professional before they are filed, to ensure your legal rights are protected.

However, if you follow these three steps there is also another, potentially far more valuable, benefit to you.

By responding in an effective professional manner, both your ex, and their counsel (if any), will know you are taking matters seriously, and intend to take all necessary legal proceedings to vigorously protect and pursue your legal rights.

Consequently, you have just laid the groundwork to encourage a negotiated or mediated family law settlement. That’s because your ex is no more interested in costly, protracted legal proceedings, than you are.

You do have something in common after all, trust me.

It’s called common sense.

Better late than never!

Cruise Control

Protect your assets like a celebrity!

While Canucks owner Francesco Aquilini was recently successful in shielding his financial divorce documents from prying eyes, the same can’t be said for the financial terms surrounding the quickie divorce of Tom Cruise and Katie Holmes.

According to oneUSmedia source, Katie walked away with no spousal support from Tom, or any share in Tom’s assets, certainly noteworthy considering he’s worth approximately 250 million US dollars.

All of which is not so surprising since the pair apparently inked an ironclad pre-nup, which no doubt specified no support or asset division in the event of divorce.

But before anyone sheds any tears for Katie, she will repeatedly be receiving child support payments of approximately $33,300.00 per month for their daughter Suri, until she turns 18 years of age.

Here in BC, the amount of child support is calculated by using the income of the paying spouse, and the Federal Child Support Guidelines.  I have no way of knowing how they calculated this amount for Tom.  (However, for those curious souls like me, if Tom was here working in BC and paying child support of $33,300.00 for 1 child, he would need to have an income of approximately $4,500,000.00).

However, just like here in BC, Tom is also responsible for additional expenses, such as Suri’s tuition, ($40,000.00 per year), medical expenses, etc.  In BC, Tom and Katie would share such expenses in proportion to their respective incomes, (and adjust annually), or they could simply agree to share them 50/50.

According to the sameUSsource, one of the divorce terms also specifies that Suri not attend any sort of “ residential school,” which has been interpreted by some as meaning a residential school associated with theschoolofScientology.  Not sure if that’s the correct interpretation, although I am fairly certain the exact nature of the “residential school” to be avoided, is clarified in the divorce settlement, otherwise Suri would have a difficult time eventually attending any long distance educational institutions, (such as college or university), and residing in residence.

For those of us non-celebrities contemplating a pre-nup, (also called a Marriage Agreement), it can be an extremely advantageous document to have in your pocket, (or purse), saving you legal costs, stress, and delay, in the event of a separation or divorce.

So take my advice, make like a celebrity, and get one!  Did I mention, I’m a family lawyer who prepares pre-nups and Marriage Agreements……?

P.S.  The family law regarding division of property, (and other matters), on separation are changing in March of 2013.  It’s a good time to review your options!

Breathe!

Three tips to
survive your separation!

Forget the Blame

If, and when, your relationship ends, the initial thoughts of the majority of my
family law clients focuses on blaming the other partner’s misbehaviour,
infidelity, gambling, alcoholism, etc. as the major reason for the failure of
the relationship.

My clients, considering themselves the aggrieved victims, are inevitably surprised
(and disappointed) to hear me tell them that their spouses’ alleged misbehaviour,
while no doubt an emotional minefield, has absolutely no relevance or
importance (with rare exceptions) to a court.

Far better and more constructive to take whatever steps you need to deal with your
own issues, and receive the support you need, since the only person who can
truly make you happy is you.

The first tip, find your own happiness, within.

Zip Your Lip

Readers of this blog know that I encourage parties to work out whenever possible the
basics of their separation. That’s the guiding principle of my
kitchentabledivorce approach.

However there is an important condition precedent. Namely, you absolutely must take the
time to thoroughly understand your legal rights before you have any discussion
with your partner. This does not mean talking with your well meaning friends,
your dentist, your father’s accountant, or cruising the internet.

It means actually meeting and talking with an experienced family law professional,
such as myself. But it doesn’t mean you have to retain a lawyer.

I frequently meet and advise clients on a pay as you go basis. This usually
begins with an initial hour long session, where I identify the key legal issues
in their separation, and recommend a checklist of essential elements that need
to be discussed, and hopefully resolved.

My second tip, zip your lip, until you know your legal rights.

Remember Your Children

Separation is usually preceded by a lengthy period of tension and conflict, which tends to
adversely affect children most of all. Unfortunately, with parties consumed
with their own fears and futures the mental and emotional needs of the children
are often overlooked.

Lastly, but most important of all, remember the children. Find them (and you) the
emotional help and support in their time of need, another key principle of
kitchentabledivorce.

Now, take thetime to take a deep breath, you’ve earned it!

 

 

 

 

 

 

 

 

 

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!

Improving Your Odds!

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.

 

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!

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!

 

 

 

 

 

 

 

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.