Archive for the ‘ initial advice ’ 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.

 

 

 

 

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!

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.

 

 

 

 

 

 

 

 

More Stupid Mistakes! – Part 2

 

Is moving out of the family home a good idea?

Not if you’re the husband, according to US author and family lawyer Joseph Cordell, who devote s a chapter in his book “The 10 Stupidest Mistakes Men Make When Facing Divorce” to the subject.

In fact, he makes some compelling arguments.

Firstly, if there are children, according Mr. Cordell it is much easier to stay fully involved with them if you’re in the family home than living elsewhere. I agree that this is certainly an important consideration before you make any decision to stay or go, since arguments involving access, can, in my experience, pose some of the most difficult, and frustrating challenges for any spouse who departs the family home.

In addition, after a lengthy period of separation from the children courts may be more reluctant to overturn the access “status quo” which has remained in place since you left the family home.

Secondly, there are financial considerations. Obviously, unless you have the option to move in with friends or family it is less expensive to simply stay in the family home.

Lastly, there is the matter of “stuff” – by that I mean items of furniture, personal effects, important documents (such as income or business related papers), etc. If you leave the family home, as I tell my own clients, it is virtually certain that you will never see such personal possessions again.

This is also the reason I advise my clients should they choose to leave the family home that they move out everything they wish to retain, and to itemize and record (plus video if possible) not only what was taken but what was left. A video is helpful to counter any argument that, either the place was left a total mess, or that the only items of furniture remaining consist of wooden crates or the like!

In summary I would agree with the approach that it’s preferable to remain in the family home if possible, however there are certainly limitations. For example, if there are allegations or a history of domestic mistreatment (by either spouse) then I suggest it may not be prudent to stay. If family law disputes also become criminal matters the chance of either an amicable or speedy negotiated resolution are greatly diminished.

So, there really isn’t a simple answer to whether you should stay or go, it all depends on your own circumstances.

But one thing is certain, before you make this or any other important decision, take some time to talk with your own family law expert.

 

 

 

 

 

Smart Kitchen Table Etiquette

When words can hurt you!

Sally beamed as she proudly informed me that she and her former spouse had sat down at their kitchen table and negotiated their own separation agreement.

Now as any of my former or current clients, or anyone who reads this blog, knows all too well, I encourage as much discussion between separating spouses as possible, rather than restricting the negotiations to counsel.

However, there are crucial pre-conditions – the first of which is likely the most important, and unfortunately the one ignored by Sally, and no doubt many others.

Firstly, before talking about such details as how the family assets and liabilities are to be divided, or how much support is to be paid, and for how long, be sure to find out your legal rights and obligations.

If you don’t, just like Sally who reached a verbal agreement on monthly spousal support with her ex BEFORE knowing her legal rights, (which was substantially lower than what Sally was actually entitled to receive) you now have one of two options. You can decide not to rock the boat and simply accept the reduced support, or you can announce to your upset ex that your  support must be increased.

Both of these uncomfortable options can easily avoided if you simply take some time to first consult with an experienced family lawyer before sitting down at the kitchen table with your ex to discuss terms of settlement.

Secondly, if you don’t feel comfortable sitting down with your ex to talk about what happens next, don’t. There is another option which I encourage in such circumstances. It’s a meeting with your ex, supported by your counsel.

If your ex also has counsel at he meeting (not a bad idea because your own lawyer is professionally bound not to give legal advice to anyone other than you), it’s called a four-way meeting. In my experience such four-way meetings can be productive, and lead to the preparation and signing of a separation agreement, thereby avoiding both costly legal proceedings, and unfair terms.

You can also choose to talk or not, at the meeting, and in some situations my client waits in another room while I shuttle between the ex and his or her counsel and my client.

Those are my kitchen table words of wisdom for this week, for more, keep reading this blog, and join my kitchen table divorce support group on Meet Up.

 

Absolutely everything – If you do it right!

I’ve seen it all when it comes to do-it-yourself Separation Agreements. And that is definitely not a good thing. Everything from wrongly crossed out paragraphs, crucial missing provisions, to the use of foreign legal terms downloaded from some other jurisdiction. It all makes me shudder.

Nonetheless, when I was recently asked by someone, whether her and her ex should simply prepare their own Separation Agreement, I was temporarily at a loss for words.

So I think it’s about time I came clean on the subject, once and for all.

The most common do-it- yourself Agreements in my experience are pre-printed forms, or on-line precedents, which the person is expected to correctly complete. This sounds good in theory.

That is, if you and your ex perfectly fit the standard profile. Sort of like Barbie and Ken.

But that’s never going to happen. Because despite what may appear to be numerous similarities, just like you and your ex are unique individuals, so is your family law situation.

Using a cookie cutter, one form fits all approach, risks overlooking some essential elements, which need to be addressed and settled. If not, they are virtually guaranteed to re-appear at a later date, causing big headaches.

Here’s just one such example. Parties select “reasonable and generous access” as a term of the Agreement. After all, it seems fair at the time to both parents. What could go wrong?

Unfortunately, since both parties must agree as to what is “reasonable and generous”, it can, (and does) become fertile ground for disagreement, and future litigation.

I won’t even bother commenting on the fact that the vendors of such forms and precedents also take for granted that they’ll be properly filled in, suffice to say this is an unrealistic expectation. After all, it’s not that uncommon for even family lawyers to make mistakes when preparing Agreements. At least your lawyer has professional insurance coverage if they screw up.

So then what’s the problem with preparing the draft Separation Agreement yourself, and then having an experienced family lawyer, such as me, review it?

Nothing at all and that’s an excellent idea, since I always encourage my clients to take a hands-on, kitchentabledivorce.ca approach.

However, in my own experience, by the time I’ve reviewed, and corrected the proposed draft agreement, interviewed you to assess your situation, and specific concerns, and informed you of your legal rights and obligations, and recommended much needed changes, you’ll be much further ahead by talking to me first, before preparing anything!

Unless of course you’re Barbie, (or Ken)!

Happy New You – Part 2!

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!

Happy New You! Part 1

 

Great resolutions – if you’re separating – and how to keep them!

Making New Year’s resolutions is naturally big this time of year. Although according to a psychologist I heard on the radio, much harder to make than to keep, with 80% of resolutions failing within the first two weeks.

But I don’t think it takes a psychologist to tell us that most resolutions fail; I mean there is an obesity epidemic after all, and half of marriages end in divorce.

So here is the first of three New Year’s resolutions I suggest you think about making, if you’re experiencing, or seriously considering, separation or divorce, with some important advice, to help you keep them.

Resolution #1Take care of yourself (and your kids.)

I shop for Kleenex at Costco for a simple reason. Breaking up is hard to do. But I’ve also discovered after many years of advising, and representing, my family law clients that very few actually take any steps to obtain supportive counselling while suffering tremendous stress and strain.

Sure knowing your legal rights is crucial (see Resolution #2 to follow) but unless you receive effective emotional support, and feel confident about yourself, and your choices, you’re less likely to make good legal decisions.

I’m a long time advocate for family law clients to explore both group and personal counselling, because I know it works! For more information about the counselling advantages of my kitchentabledivorce.ca support group (and testimonials) visit my site at www.underappeal.com 

Also don’t ignore the profound impact of separation and divorce on any children. They should also receive, at the very least, a professional assessment to see how they’re dealing with it all.

Because such an assessment is not intended as a tool to provide an advantage to either party in the event that custody is contested, there should be no problem for you and your spouse to agree that the children’s best interests demand such professional attention and evaluation.