Archive for the ‘ do it yourself separation agreements ’ Category

Post Traumatic Court Disorder

 

 

What is PTCD and what’s the cure?

 

No, you won’t find this particular disorder in the official manual of standard psychiatric disorders. But that doesn’t come as much comfort to thousands of traumatized Canadians, forced to handle their own family law matters. One such self represented litigant coined the phrase to describe her own experience with the family law system.

 

A recent report authored by Law Professor Julia MacFarlane also documented the widespread dissatisfaction of many others in BC, Alberta and Ontario, including middle class, University educated litigants, who felt isolated, overwhelmed, and abandoned by the system.

 

So if this condition affects you, or someone you know, what’s my prescription for a cure?

 

As a family lawyer myself I have made an effort to support those who represent themselves, whether out of financial necessity or otherwise, and there are certain steps you can take to help yourself.

 

Firstly, PREPARE. Take the time to access available on-line resources to familiarize yourself with the basic legal issues.

 

But also be sure to access sites from the same jurisdiction, for example, if your family matter is in BC, don’t bother accessing on-line resources in Ontario, or complete a precedent on-line agreement from a different province. That’s because each province has different laws and terminology.

 

Secondly, CONSULT. Just because you now have a general knowledge of the law, trust me there will be serious legal gaps.

 

Now’s the opportunity to invest in spending some time to talk with an experienced family law professional, especially before you prepare your own application, or respond to one. If you don’t, and mistakes are made in the paperwork ,your case may be doomed before you start.

 

Also keep in mind that some family law lawyers, such as myself, will

provide legal advice on a when, and as-needed basis, which eliminates the need  and cost of retaining a full-time lawyer. Technically, you are representing yourself, but you still have access to legal support when needed.

 

Thirdly, VISIT. Most self reps are intimidated, and totally stressed, at the prospect of going into court. This feeling is purely natural, but treatable. If you can, prior to any court date, take the time to visit the courthouse and observe some family trials or applications, which should help to put you at ease. You also don’t need the added stress of getting lost on your way to the courthouse on your first court date!

 

Finally, HEAL, My last prescription has nothing to do with legal advice, but at the same time will have a profoundly significant impact on both your case and the rest of your life. Being healthy, confident, and emotionally secure radically enhances the prospect that the legal choices you make are the right ones.

 

If you are an employee, check to see whether your company has an employee assistance program which provides free or reduced cost access to personal counselling. If not, look for other personal or group counselling resources, such as my kitchentabledivorce.ca counselling group.

 

Lastly, unlike most prescriptions, mine comes with no adverse side effects!

 

 

 

 

 

 

 

 

 

 

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!

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!

 

 

 

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.