Archive for the ‘ mediation ’ Category

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!

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!

Healthier Choices

 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!

HANDS on the WHEEL!

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!

Scary Statistics!

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!

No.1 Question – FEAR NO DIVORCE!

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!

KitchenTableTalk – No.2 Question

The second most frequently asked question I am asked by any family law client is, “Just how much is my spouse entitled to in our divorce?”.

It’s a great question, although one with some legal twists and turns. I begin my answer by informing my client about the general legal principle (sometimes referred to as a general presumption) which applies when parties separate and divorce. Namely, both parties are entitled to an equal division of family assets.

Of course it helps to first have an understanding of what is a family asset. A family asset is typically any asset which is, or has been, used or enjoyed for a “family purpose”. This usually includes the family home, vehicles, recreational properties, etc. However, some assets have been defined as family assets regardless of any family purpose, these include such items as RRSP’s, and employment pensions.

So now that you know what are the usual family assets, there are some notable exceptions to the 50/50 split of family assets. One of the most important is the duration of the relationship, not necessarily just the length of the marriage, since it could encompass a period of co-habitation. For what are considered very short marriages, ie less than five years, courts will consider the respective contributions (including financial, household, and child rearing contributions) of each party, before deciding an equal split is fair. For example if one party (spouse A) had amassed significant assets before marriage, in the absence of equivalent financial contributions from the other spouse (spouse B), or other household or child rearing responsibilities, there is a possibility that  a court could decide to re-apportion the assets in favour of spouse A.

All of this means that whether you identify as spouse A or B you should not simply agree to any specific division of family assets, without first receiving some legal advice from an experienced family lawyer. Otherwise, it could become the costliest mistake you’ll ever make!

Kitchen Table Divorce

They say marriage is grand – sadly, divorce is twenty grand (or more).

But if you’re like most middle class taxpayers you don’t have twenty grand to spend on lawyers. So just what are your legal options?

After over 20 years of experience as a family lawyer, I recommend an approach, for all my clients, which I like to call the Kitchen Table Divorce Option. So what is it all about?

It’s all about learning the right ingredients to beat the high legal cost of divorce and separation by representing yourself, even if your spouse can afford his or her full time family lawyer. Knowing when to make use of legal advice, and legal alternatives ie mediation and collaborative divorce, is critical, and so is being properly prepared.

But is it really possible to represent yourself and survive? You bet! All you need to do is to ask one of my many clients.

So why the reference to the Kitchen Table? Because traditionally the kitchen is where you can find all the right tools and ingredients, while the kitchen table is where everything comes together to create a successful recipe, or in our case, your own self made divorce.

The Kitchen Table (or for that matter any other table) is also the place where I suggest the parties initially meet to discuss and attempt to resolve any differences. That’s, of course, only an option if there is not a history of abuse or violence.

Some helpfull tips to start. Firstly, create a checklist of items that you would like to discuss and be sure to exchange with your spouse beforehand, ( ask if there other items that your spouse would like to address). A very good idea before the meeting is to obtain some legal advice about your rights and responsibilities. The lawyer can also help with the checklist and explain common but often misunderstood legal expressions ie joint custody which can otherwise create huge problems.

Secondly, resist the urge to agree on any financial numbers ie the price to purchase your interest in the family home or for that matter any other value. That’s because your spouse will inevitably take the position (after you find out that you literally gave away the farm – before you got legal advice) that you are now breaking your “promise” to her. Believe me when I say this can also cause headaches.

Thirdly, resist the temptation to sign anything, before getting independent legal advice, even if it looks like a smokin deal!! If you ignore this advice, you may find that you are legally trapped into an arrangement which you can’t get out of!

Last words – in my future blogs I’ll share some of my other legal insight and tips to show you how to make kitchen table divorce work for you.