Archive for the ‘ kitchen table divorce negotiations ’ 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!

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!

 

 

 

 

 

 

 

 

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.

 

 

 

 

 

 

 

 

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!