Pathways to Amicable Divorce: Directions for the Beginning of Separation
In an effort to create access to important information about separation and divorce to all families experiencing this difficult life transition, we are providing a free re-print of our critically-acclaimed book!
Pathways to Amicable Divorce: Directions for the Beginning of Separation
Author: CHRISTINA VINTERS, J.D.
Published by: Modern Separations Ltd. (formerly Vinters Family Mediation Ltd.)
Copyright: Christina Vinters, J.D., 2016. All Rights Reserved.
2nd Edition
Disclaimer: The views expressed in this book are the author’s own. This book is not in-tended as a substitute for legal advice. The reader should consult with a lawyer for advice relating to his/her particular situation. Family law outcomes vary significantly depending on the particular facts of the case. Although the author has made every effort to ensure that the information in this book is correct, the author does not assume and hereby disclaims any liability to any party for any loss or damage caused by any errors or omissions in this book.
Foreword
Over the past ten years in Canadian law, and most certainly in American law as well, the most consistently pressing issue has been access to justice. And within the Canadian context, access to justice in the family law context has been even more pressing still. Information, like the kind to be found on the pages that follow, is critical in the access to justice journey.
Writing for the University of Victoria’s newly created Access to Justice Centre of Excellence, Professor Jerry McHale, QC argues that there has been a profound shift in our under-standing in the access discussion. Legal literacy, public legal, education, dispute prevention and self-help have all been woven into a discussion that had for the most part been centred on access to the courts or access to litigation being the key path to justice.[1]
He writes,
The search for access now extends well outside and beyond the formal legal system to include equal access to any legal or non-legal information, resource, service or process (formal or informal) that contributes to the mitigation or resolution of disputes. … it should involve enhancing not only people’s access to dispute resolution processes, but also access to, and the capacity to participate meaningfully in, the processes by which laws and legal procedures are made. … this expanded conception of access insists that we take into account the structural inequities that exist in our system and that we see our justice institutions as responsible to do more than simply expose people to dispute resolution processes.
Coming to see that “disparities in social power, and not procedural glitches in the processes of civil litigation, are the root of injustice”[2] changes the parameters of the access to justice debate. Ensuring that people who find themselves negotiating the breakdown of the primary relationship in their lives, have access to plain language information, is part of the solution.
We can see the strategies for change in all sorts of venues within law. In April 2016, for example, the Executive Director and the Director of Litigation of WestCoast LEAF, a Vancouver, BC based non-profit organization with a mandate of achieving equality by changing historic patterns of systemic discrimination against women, appeared before Parliament. They argued, “equal access to our justice system is a necessary precondition for a society in which women are full participants in all social, economic, and political activities. … crucial areas of law woefully underfunded, such as family law and immigration, areas which disproportionately and differently impact women. Furthermore, legal aid funding across the country is in-consistent, so that access to justice varies dramatically depending on where you live.”[3]
The message about access to justice in the family law context, has also been one closely at-tended to by the Justices of the Supreme Court of Canada. In an August 2015 speech about the legal profession in the 21st Century, the Rt. Hon. Beverley McLachlin, PC, Chief Justice of Canada said:
Fulfilling the public’s expectations for justice – in a phrase, providing “access to justice” – is vital. It is vital to providing the justice to which every person is entitled. Statistics show that people who get legal assistance in dealing with their legal problems are much more likely to achieve better results than those who do not. As servants of justice, lawyers have a duty to help solve the access to justice crisis that plagues our legal systems. It is vital to the rule of law. And finally, it is vital to the future of the profession. If the legal profession fails to meet the demands of the public for prompt and affordable justice, people in search of justice will go elsewhere, rendering the legal profession increasingly irrelevant.[4]
As Christina Vinters does, in the pages that follow, lawyers are called upon to exercise their ethical imaginations, to find innovative means through which to address the challenges that people face when they find themselves needing access to legal services. As the Hon. Thomas A. Cromwell, Justice of the Supreme Court of Canada has said, “in general terms, members of our society would have appropriate access to civil and family justice if they had the knowledge, resources and services to deal effectively with civil and family legal matters.”[5]
Access to justice for people facing challenging family law issues is huge and complex. But every initiative matters. This book is a powerful resource for anyone in a range of scenarios, from contemplating separating from their spouse, through the throes of divorce, worried about the impact of divorce on their child, or even just trying to figure out how to offer counsel to a friend in need. It offers important context that surrounds anyone whose primary relationship is breaking down. It makes the advice given accessible through connecting what we know about lawyers and family law to norms and ideas that are present in popular culture and media.
It then moves to centre on questions of fairness, and makes possible the idea that people can work through a divorce, with all of the messiness that separating presents; that people can and will disagree, but that it doesn’t have to be disagreeable.
And from there each chapter stands alone, offering contextual, thoughtful advice, taking complex legal terminology and presenting it in forms that will offer tools to someone making the difficult decisions that a separation from a spouse imposes. It is both gentle and firm, and at each page, it offers a host of things to think about, questions to work through, and re-sources to aid in all of those processes.
Divorce and separation are different in differing jurisdictions, and there are some big differences in the law between Canada and the United States, and for cohabiting couples, big differences from province to province and from state to state. But, there is also lots that is shared. And this book makes that visible, alongside all the various ways that professionals can and should help.
I have been fortunate to know Ms. Vinters for several years, meeting her first as a law student, at the University of Victoria’s Faculty of Law. She was a careful, imaginative research-er then. In the intervening years, her approach to working with the difficult issues family law can present has only grown in care and in skill. The pathways the pages that follow offer are a product of this careful work. In her conclusion she calls on people who are separating to be “very intentional about making constructive choices at each fork in the road.” It is solid ad-vice, and indicative of a work that is intentional in its goal of being part of what access to justice in family law can mean.
– GILLIAN CALDER, LL.M., Associate Dean & Family Law Professor, University of Victoria – Faculty of Law
[1] Jerry McHale, QC, “What does ‘Access to Justice’ mean?” February 2, 2016, http://www.uvicace.com/blog/2016/2/2/what-does-access-to-justice-mean
[2]Ibid., citing Roderick Macdonald, “Justice Is a Noun, But Access Isn’t a Verb” in “Expanding Horizons: Rethinking Access to Justice in Canada”, online: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/op00_2-po00_2/b4.html#sec15.
[3] See more at: http://www.westcoastleaf.org/2016/04/14/were-in-ottawa-to-urge-action-on-access-to-justice/#sthash.gUxwb9qi.dpuf
[4]http://www.scc-csc.ca/court-cour/judges-juges/spe-dis/bm-2015-08-14-eng.aspx
[5] Hon. Justice Thomas Cromwell of the Supreme Court of Canada, “Access to justice: towards a collaborative and strategic approach” University of New Brunswick Law Journal (January, 2012), online: www.highbeam.com/doc/1G1-302776655.html, cited in http://flsc.ca/wp-content/uploads/2014/10/services5.pdf at 1-2.
CHAPTER 1
Introduction
Pathways to Amicable Divorce begins with a look at the culture of divorce in North America. There are serious problems with how we have handled divorce in recent decades. The traditional legal approach is lengthy, expensive, unpredictable, traumatic for the participants and their children, and destructive to family relationships. The adversarial legal process pits separating couples against one another, often making any future cooperation a virtual impossibility. This traumatic process has yielded cultural notions of divorce as battle and inevitable bloodbath. However, it doesn’t have to be so. This book describes several pathways to amicable divorce, all of which emphasize the de-escalation of conflict, good faith negotiations, the best interests of the children, mutually beneficial outcomes, and efficiency.
In addition, this book provides a basic overview of the meanings of separation and divorce in Canada and U.S.A., and the fundamentals of financial disclosure.
There are illustrative anecdotes interspersed throughout to enhance understanding of the various concepts and tips. The book also directs the reader to many supplemental online videos and informational websites in the footnotes and in the Online Resources section.
I see so many people unintentionally taking missteps at the beginning of separation out of a combination of fear, anger, lack of information, and embedded cultural assumptions about what divorce looks like. These missteps unnecessarily lead people down a very difficult path. I wrote this book in the hopes that it can help well-meaning people start off on the right foot when they realize that their committed relationship has come to an end. Good intentions are not enough: you and your partner will need to make deliberate choices throughout your separation to stay on a pathway to amicable divorce. This book sets out the roadmap for the various possible routes.
I hope this guide to amicable divorce can play a small part in helping you maintain or re-store peace in your family life. Feel free to get in touch; I’d love to receive your feedback.
CHAPTER 2
The Culture of Divorce
Social norms evolve regarding all aspects of human life, including the creation and dissolution of intimate relationships. From pre-historic pair-bonding for the purpose of protecting offspring to property-oriented alliances in the middle ages to today’s romantic love matches in many parts of the world, human beings have experienced many different family structures and traditions. Accordingly, the purpose, meaning and duration of marriage has varied widely both across time and across cultures since the first known reference to the concept in about 2100 B.C.[1]
We find ourselves now in North America in an era of regular separation of common law couples and divorce of married couples. It is estimated that approximately 40% of marriages in Canada end in divorce[2] (approximately 70,000 per year)[3]. This does not include the breakdown of common law relationships so the actual percentage and number of families experiencing separation is even higher. In the U.S.A., approximately 50% of first time cohabiting relationships end within 5 years, 20% of first marriages end within 5 years and 33% with-in 10 years[4] (approximately 1 million divorces per year, plus separations of common law couples)[5]. This is clearly a common aspect of modern life for families. If your own relation-ship or your parents’ relationship hasn’t dissolved, it is a near certainty that you have other relatives, friends, neighbours and co-workers who have experienced separation. In fact, many North Americans now have two or three significant committed relationships over their life-time which means that many people go through a separation more than once.
Divorce is often referred to as the second most traumatic event in a person’s life, following only behind the death of a close family member. Given the large numbers of people who experience at least one separation, it is worth considering at the outset of separation which aspects lead to trauma and what steps can be taken to reduce the traumatic nature of separation for you and your family.
The legal systems in Canada (with the exception of Quebec) and the U.S.A. are common law adversarial systems. An adversarial system pits one side against the other as “opposing parties” to advocate fiercely for their respective positions with each side working to convince the judge to rule in their favour. It is specifically set up as a win-lose dynamic. The theory is that the judge will be able to get at the truth through this system of advocacy. In practice, this means that each side usually gives evidence supporting their case, as well as evidence at-tempting to discredit the other party and to dismantle the case of the other party.
The adversarial process is well-suited for bringing transparency and justice to many types of cases. For example, in cases like an injured person suing another driver after a car accident, a patient suing a doctor for malpractice, a company suing another company for a trademark infringement, or the prosecution of a criminal offence, none of the parties will have to cooper-ate or even see each other after the courtroom drama has finished.
In contrast, many separating couples will have to continue to cooperate over financial and parenting matters, and perhaps see each other for the rest of their lives (once the children have grown up, there will still be events like birthdays, weddings, the birth of grandchildren, and so forth). Furthermore, for most people attempting to resolve family issues, the litigation process feels profoundly stressful and intensely personal as much of the evidence and argument goes to the core of who they are as people (What kind of parent are you? What have you done with your life? How have you contributed to the marriage? Is your love of wine an indication of some kind of concerning problem? Do your life choices raise questions about whether you have your child’s best interests at heart? Are you presently making your best ef-forts to become independent? These are just a sampling of the kinds of questions that can be examined in the context of various different family law issues).
Because the dissolution of a committed relationship and the restructuring of a family are so complicated, involving the re-imagination of many different parts of day-to-day life, the separation process often takes months, sometimes over a year, and sometimes much longer. In the meantime, the traditional adversarial process will usually include court applications to try to bring some temporary order to the chaos (What are the arrangements for the care of the children? How much support will be paid? Where will everyone live? Will the house be listed for sale? Is a family business valuation necessary? Should a psychologist be hired to perform a custody and access report? Etc.). There may also be examinations for discovery (which is like cross-examination) and other stressful and expensive preparatory experiences pending the final trial that slowly decrease any prospect of functional communication or cooperation. It is essentially accepted by many in the legal world as well as society at large that there will be no winners at the end of a divorce battle because everyone will be financially and emotionally drained from the process. The adversarial system is devastating to families; it often cripples the ability of parents to effectively co-parent their children and to relate to one another on a human level.
I will pause to say that litigation has its place in family law and may be necessary in cases where one person is a bully, an abuser, and/or has a serious personality disorder, mental health issue or substance use problem that prevents him or her from being rational and responsible. If you are dealing with such a person, you may need the power of the court in order to resolve your family issues fairly. This, of course, includes concerns related to the safety and well-being of children. In such cases, you will want to retain a top notch family law litigator. I caution you to include yourself in this group too hastily though because, although many people feel hopeless at some point in their separation about the prospect of ever reaching an agreement, about 98% of family cases settle without going to trial.[6] Granted, many of these cases involve interim court applications. My hope though is that with growing public awareness of the negative effects of the adversarial process on families and the many amicable options that are available, more and more people will choose to resolve their disagreements without any court interventions whatsoever.
The way that we have dealt with separation and divorce in North America in recent decades has been so traumatizing to families that it has become a cultural trend to dehumanize and vilify the “ex”. Here are a few pop culture examples of the divorce as combat mindset:
The media made a mockery of Gwyneth Paltrow’s 2014 announcement that she and her husband were “consciously uncoupling”. While I agree that the term sounds a bit flaky and new age-y, it was disheartening that the media made scathing comments about how Ms. Paltrow couldn’t even divorce like everyone else, insinuating that her attempt to part ways amicably was somehow elitist and abnormal.
The often-cited divorce joke “Why are divorces so expensive? Because they are worth it.” implies a long, drawn out court battle with the dreadful “ex”.
Robin Williams succinctly summed up the stereotype about the husband’s finances and personhood getting obliterated by the ex-wife with the following bit: “Ah… divorce. From the Latin word meaning to rip a man’s wallet out through his genitals.”
The movie The First Wives Club starring Goldie Hawn, Bette Midler and Dianne Keaton is a “comedy” about the revenge of three first wives on their ex-husbands who left them for younger women. The movie’s tag line is: “Don’t get mad. Get everything.”[7]
The movie The War of the Roses starring Michael Douglas, Kathleen Turner and Danny DeVito is a “comedy” about a separating couple who viciously come after each other to the point of attempted murder as they each try to win the house in their divorce.[8]
There is a recent trend for divorce celebration cakes. The most popular ones seem to be the one with a groom standing at the top of a tiered cake with a bride lying face down beside the bottom tier of the cake in a pool of icing “blood”, and the one with the bride hauling the groom by the scruff of his neck to a trash can. Try Googling “divorce cake” images; this sentiment can’t possibly bode well for any type of civilized post-separation relationship!
While you’re on Google, check out the cartoon of two crocodiles talking to each other, one of whom is holding a crocodile skin purse. One says: “Nice purse”. The other responds: “Thanks. It’s my ex-husband.” Just another humorous allusion to murdering or skinning alive the “ex”…
All of these incredibly negative associations and sentiments embedded in our culture can’t help but influence your perceptions unless you are mindful to frame your understanding of your separation differently. The above examples take perceptions about divorce to the extreme limit for entertainment value. However, the sentiments shouldn’t be misjudged as merely jokes. There are threads of some of these disturbing attitudes woven through many adversarial divorces. It is this high conflict mindset and strategy which is the crux of the traumatic nature of separation.
Studies have shown that high conflict between parents during and after separation can be traumatic for children and can result in poorer developmental and behavioural outcomes for them.[9] Some of the concerning effects on the child of a high conflict separation may include: failing to learn how to deal with conflict in a healthy way; learning to lie to please people they love; experiencing impaired relationships with peers; depression; anxiety; and developing negative attention-seeking behaviours.[10] High conflict is particularly detrimental to children when there are frequent transitions between households.[11] High conflict separations may involve yelling; refusing to speak to each other; name-calling; badmouthing the other parent to the child or in front of the child; arguing in front of the child; failing to cooperate about the parenting schedule; failing to facilitate the child’s time with the other parent; failing to pay adequate support; using time with the child as a financial bargaining chip; questioning the child about time spent with the other parent; failing to disclose important documentation; or myriad other small and large transgressions. Children feel deeply and perceive more than parents realize.[12]
The statistically predictable restructuring of families through separation shouldn’t be man-aged in ways that routinely traumatize both parents and children. Stressed out parents do not generally make great parents or make the best decisions for their own well-being. In addition, we know now that childhood trauma, which causes the overstimulation of the child’s ‘fight or flight’ response (including an increased heart rate and the release of cortisol and adrenalin), has serious health implications. The stress on a child experiencing conflict between parents on an ongoing basis can actually cause long-term physiological changes, leading to problems later in life, like higher propensities for substance use and other risky behaviours, as well as greater susceptibility to heart disease and cancer.[13]
In addition to all of these downsides of using the adversarial legal system for resolving family issues, the court process is expensive, slow, and unpredictable in the realm of family law. Judges have a huge amount of discretion in family law, meaning that the law gives them a lot of flexibility to decide a case in a manner that is appropriate for the specific circumstances of a particular family. Although judges endeavor to be unbiased, no human being can ever be truly unbiased. We all interpret situations through the lens of our own experiences, values and beliefs. For these reasons, there is a strong likelihood that a competent and experienced lawyer can read the family law legislation and case law, compare it to the facts of your case, give you an opinion of what may happen – and end up being completely wrong. This high level of unpredictability makes court risky even for those people who seem to have a strong case.
Nancy Cameron, a Vancouver collaborative lawyer, tells the following story about the unpredictability of family law:
“I have a fact pattern [case study] that I sometimes use in trainings that is based on a spousal support case from the British Columbia Court of Appeal. I chose it because it reminds me that I can be very wrong when I try to decide how three judges will rule. I divide the group of lawyers I am training into two groups – those giving advice to the husband, and those giving advice to the wife – and I ask them to let their client know what the court will do. Give the client advice about how much spousal support to expect, and how long it will last. I tell them that they have to be specific – no ranges. The lawyers for the husband usually give amounts and lengths that are less than the lawyers for the wife. I have used this with close to 75 lawyers. Not one lawyer has given advice that comes close to what the Court of Appeal awarded in the case.”[14]
So if the traditional divorce track is undesirable, what can we do to improve the outcomes of separation? There needs to be a paradigm shift[15] in how we view separation. Separation does not have to be nasty and ridiculously expensive. You and your partner have the ability to shift your mindset from divorce as a combat at the cost of the family to divorce as a respectful re-structuring for the benefit of the family. De-escalating conflict must be the priority in order to try to do no harm to yourself, your partner, or your children.[16] Research indicates that children cope with separation better when there is: insulation of the children from conflict; good, authoritative parenting; consistent, quality contact with both parents; cooperative co-parenting; and support from family, friends and community.[17]
The pathways to amicable divorce discussed in this book (Kitchen Table Negotiation, Mediation, Mediation/Arbitration, and Collaborative Law) have been designed by experts who recognized the harmful nature of the adversarial process on separating families. These path-ways all emphasize the de-escalation of conflict, the children’s best interests, good faith negotiations, mutually beneficial outcomes, and efficiency. I believe that, in most situations, taking one of these pathways will maximize the chances of positive outcomes for you and your family.
[1] For a whirlwind summary, see the TED-Ed video by Alex Gendler titled “History of Marriage”: http://ed.ted.com/lessons/the-history-of-marriage-alex-gendler.
[2] Mary Bess Kelly, “Divorce cases in civil court, 2010/2011” Statistics Canada catalogue no. 85-002-X: http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11634-eng.htm
[3]http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/famil02-eng.htm
[4] Bramlett MD and Mosher WD. “Cohabitation, Marriage, Divorce, and Remarriage in the United States”. National Center for Health Statistics. Vital Health Stat 23(22): http://www.cdc.gov/nchs/data/series/sr_23/sr23_022.pdf
[5]http://www.cdc.gov/nchs/nvss/marriage_divorce_tables.htm
[6] Mary Bess Kelly, “Divorce cases in civil court, 2010/2011” Statistics Canada catalogue no. 85-002-X: http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11634-eng.htm
[7] The “Sweet Revenge” clip from The First Wives Club: https://www.youtube.com/watch?v=nhomGXOMYmc
[8] The movie trailer for The War of the Roses: http://www.imdb.com/title/tt0098621/?ref_=fn_al_tt_1
[9] Hal Arkowitz and Scott O. Lilienfeld, “Is Divorce Bad for Children?” March 1, 2013: http://www.scientificamerican.com/article/is-divorce-bad-for-children/
[10] Bob Livingstone, “How Children Cope with High Conflict Divorce: How are they harmed and what can parents to do help them?” June 2013: http://www.mediate.com/articles/livingstone1.cfm See also Dr. Phil’s video clip “What hap-pens to kids during a bitter divorce?”: http://drphil.com/shows/page/14009_kids_in_divorce/
[11] Joan B. Kelly, “Children’s Adjustment in Conflicted Marriage and Divorce: A Dec-ade Review of Research” (August 2000). J. Am. Acad. Child Adolesc. Psychiatry, Vol. 39 is-sue 8, 963-964.
[12] See The Child of Divorce’s video “Voice of the Child of Divorce” for a moving ex-planation of how conflict affects children: https://www.youtube.com/watch?v=lbTFZ8cvHo4
[13] See Dr. Nadine Burke Harris’s TED-Med video “How Child Trauma Affects Health Across a Lifetime”.
[14] Nancy J. Cameron, Collaborative Practice: Deepening the Dialogue (Vancouver: Con-tinuing Legal Education Society of British Columbia, 2004), p. 61.
[15] Thomas Kuhn coined the term “paradigm shift” in his 1962 book, The Structure of Scientific Revolutions. The term refers to a significant change in assumptions and patterns of thought which radically transforms the former way of thinking. He originally applied the term to the natural sciences and it was later applied by others to the social sciences.
[16] Nancy J. Cameron, Ibid., p. 83. See also Dr. Gabor Maté’s video “Parental Stress and Its Impact on Kids” – it’s a bit of a slow interview but worth watching: https://www.youtube.com/watch?v=Rof2UQfzUtY
[17] Nancy J. Cameron, Ibid., p. 75. See also Dr. Laura Markham’s video “Parenting: Pro-tecting Kids During Divorce”: https://www.youtube.com/watch?v=w8u7s8HFDOc
CHAPTER 3
What is Amicable Divorce?
Does having an amicable divorce mean that there are no differences of opinion or disagreements about desirable outcomes? No, it doesn’t. Most people – even those who have an amicable divorce – disagree about some aspects of their separation; the key is the way in which disagreements are handled.
“Amicable” is defined as:
1. Friendly in attitude, or decisions or agreements achieved with friendly attitudes and without unpleasant argument, often despite a difficult situation.[1]
2. Characterized by or showing goodwill; friendly; peaceable; implies a desire on the part of the parties not to quarrel.[2] (“Quarrel” is defined as an angry dispute or altercation; a disagreement marked by a temporary or permanent break in friendly relations.)[3]
3. Relations between people having a spirit of friendliness, without serious disagreement or rancor.[4] (“Rancor” is defined as bitterness or resentfulness, especially when long-standing).[5]
Being “amicable” does not mean that you need to give up your entitlements so as to avoid a disagreement. It means that you will handle the disagreement in a respectful, peaceful way, free of bitterness and unpleasantness.
Unfortunately, I have had clients tell me that they wanted to waive their rights, for example to their share of family property, such as a pension or an investment account, because they wanted to be amicable. While I respect the sentiment, in my opinion, these people confused being amicable with allowing themselves to be treated unfairly. Truly, I don’t think a divorce can be called amicable if the agreement between the parties is patently unfair in the circumstances. In order to be characterized by goodwill and a spirit of friendliness, an agreement must be fair to both parties. If it’s unfair, the word “amicable” in such a situation would be used incorrectly to describe one person bending to the will of the other in order to avoid his or her rancor.
An amicable divorce involves disagreeing without being disagreeable, and it involves a fair outcome. The concept of fairness is a complicated topic in and of itself but I think that, in order to be considered amicable, an agreement should seem fair overall from the perspective of both parties, both of whom have been fully informed with proper disclosure and legal advice. I discuss various amicable dispute resolution processes in Chapter 6: Processes for Reaching an Amicable Agreement.
[1]http://dictionary.cambridge.org/us/dictionary/english/amicable
[2]http://dictionary.reference.com/browse/amicable
[3]http://dictionary.reference.com/browse/quarrel
[4]http://www.oxforddictionaries.com/us/definition/american_english/amicable
[5]http://www.oxforddictionaries.com/us/definition/american_english/rancor
CHAPTER 4
Legal Components
THE SEPARATION AGREEMENT
The Separation Agreement serves slightly different functions in Canada and the U.S.
Canada
In Canada, a Separation Agreement is the written contract that is necessary in order to finalize your legal and financial ties with your partner. You may finalize all issues arising out of the breakdown of your relationship by way of a Separation Agreement and you do not need any court involvement at all, except at the end of the process to obtain your divorce order.
You do not require the Separation Agreement to be “legally separated” (this is an American concept) – you will be “separated” as soon as you have had the discussion that you’re separating, or one of you has notified the other that your relationship is over.
However, and this is a big however, your legal rights and obligations will not be resolved (they will legally remain open issues) until you have entered into a written Separation Agreement or obtained a court order. The exception to this is that there are certain limitation periods for making claims if you were never married or if there are step-children for whom you wish to claim support. If you are married, the issues of property division and support remain open indefinitely (the limitation period begins after the divorce has been granted). This means that if you have only an informal understanding with your partner and you wait to obtain your divorce, you may be unpleasantly surprised in the future, for example with a claim for spousal support, division of your pension, or some other matter that you thought had been agreed up-on verbally.
In the context of family law, you cannot rely on verbal agreements (they are legally invalid and unenforceable) and any Separation Agreement you enter into must be properly prepared and executed to be legally valid and enforceable.
U.S.A.
In the U.S.A., a Separation Agreement is also a written contract setting out your mutual rights and obligations however in some states you will also be required to attend court and advise the judge of the terms of the agreement in order to finalize the issues. Most courts have become accustomed to accepting negotiated agreements so the court involvement should be quick and easy at the end of an amicable process.
Each state has its own laws regarding divorce and there can be significant variation regarding rights, obligations, and legal processes depending on the jurisdiction. However, most states allow you to file for “legal separation” or “divorce” in order to formally sever your mar-ital partnership and the associated financial ties.
For example, New York became a no-fault state in 2010 as it relates to the grounds for get-ting divorced. Prior to August 1st, 2010, citing irreconcilable differences was not an option in the Empire State. Imprisonment, adultery (which had the added sting of being a crime, although one that had not been prosecuted since 1927), and cruel and inhuman treatment, were on the list of acceptable grounds for divorce. Living in accordance with a separation agreement was also on that list. Usually with the assistance of lawyers, parties would enter into a written agreement in which they would list how they are going to divide their assets, parent their children, support the other spouse, etc., have it notarized, and live in accordance with this agreement for one year. After that year was up they could file for divorce according to the Domestic Relations Law of New York. Separation agreements are still used now as a means to spell out an agreement in a case, but that is now done within the framework of settling a divorce action, rather than as a means to getting one.[1]
However, the laws vary from state-to-state, so it is always best to seek the advice of a lawyer before proceeding.
In any jurisdiction, a Separation Agreement should be:
comprehensive (addressing all of the relevant issues – although, in some cases, people choose to enter into interim/temporary agreements before they complete a final Separation Agreement. All issues will have to be addressed eventually and most people prefer to have one comprehensive document);
detailed (including disclosure of all property, debts, and income, any pertinent history, and the specific terms of agreement regarding all issues, for example: What happens if the house doesn’t sell by a particular date? How will parenting time be shared on holidays? How will future communication take place? How will future disagreements on important issues be handled? – essentially, enough detail to clearly understand the agreement, to address future contingencies, to hopefully minimize the chances for future disagreements, and for someone later reviewing the agreement to be able to analyze whether it is fair);
dated; and
signed by both of you (ideally not signed in the physical presence of the other so that there can be no perception of coercion).
Note: In Canada, a Separation Agreement must also be witnessed by a third party (you can’t witness each other’s signatures).
A Separation Agreement must be comprehensive and detailed to be to withstand scrutiny should any future disagreements arise. The following is a very cursory and incomplete list of the topics to be fleshed out in a Separation Agreement if they pertain to your situation:
the basics about you: names, birthdates, occupations, incomes, date of cohabitation, date of marriage, names and ages of children, date of separation;
the assets and debts that you each had at the beginning of your relationship;
the assets and debts that you each had at separation;
any inheritances or gifts you received;
any property or debt that you agree is not family property or family debt;
a brief summary of your roles in the relationship (did you both work? Was one person a homemaker and the other the income earner?)
did you enter into a Marriage or Cohabitation Agreement? If so, does it still apply?
the details for how you will handle the care of your children (which must be determined only with regard to the children’s best interests);
child support;
special and extraordinary expenses;
determination of family property and debts;
how property will be divided;
who will be responsible for which debts;
details regarding the sale of any assets and how the sale proceeds will be shared;
details of spousal support – is it payable? How much? For how long? Will there be a review?
what happens to any life insurance policies that you have? Will you maintain them until the children are grown as security for child support? Who pays the premiums?
how will future disputes be resolved? Is mediation required before going to court?
if it’s a final agreement, it should say it’s a final agreement and there should be corresponding waivers for all other issues except enforcement of the agreement;
etc., etc., etc….
This is just the beginning of a list to give you a sense of the depth of detail that you need to consider. A properly drafted Separation Agreement tends to be much longer than most people expect – generally speaking in the range of 15 – 25 pages, depending on how many issues need to be addressed and the complexity of the issues. If there are a lot of complex is-sues, the agreement could be over 25 pages long.
Many people hope to create a “simple” agreement that they anticipate will be 1 – 2 pages long. Such an agreement will be lacking in significant ways and will not provide the desired outcome of certainty and finality because a weak agreement will be vulnerable to future challenges. This means that if one of you becomes aware of a problem with the agreement down the road, you could make an application to the court to set the agreement aside.
In my opinion, it is worth the effort and investment to have your Separation Agreement drafted by someone who has significant knowledge and experience in the area of family law: either a family law lawyer or a Family Mediator. Assuming you follow one of the pathways to amicable divorce, the final outcome should be a written Separation Agreement. Do yourself the favour of completing this final but crucial task properly.
While this suggestion may seem (and actually be) self-serving, it is also to your benefit. I have seen many improperly drafted agreements and, in most cases, it is either extremely difficult (read: stressful, time-consuming and expensive) or impossible to fix the mistake when it comes to light. An investment at the front end of the process into a properly prepared agreement will save money and heartache in the future. As with most things in life, an ounce of prevention is worth a pound of cure.
Some of the problems I see when people come to me for advice after having signed a Separation Agreement without proper advice are:
the agreement failed to address a key issue (and the deadline for making a claim regarding that issue has passed);
the words in the agreement have a legal meaning other than what the person thought;
the agreement turns out to be unfair.
The Not To Do List:
Don’t draft a Separation Agreement yourself – this includes using forms purchased online or copying from a friend’s Separation Agreement (whose situation is bound to be different from yours);
Don’t ask your real estate lawyer to draft it; and
Don’t ask your sister who is a legal assistant at a personal injury law firm to draft it.
Using the analogy of medical care: you wouldn’t attempt to perform surgery on yourself and you wouldn’t want the doctor who performed your knee surgery (or your sister who helps deliver babies) to complete your cardiac valve replacement. We have the benefit of living in an age of specialization and you want someone who knows the ins and outs of family law to handle your paperwork – not someone who dabbles in divorce.
Do it once and do it properly so that you can move on with your life without having to worry.
THE DIVORCE
In Canada, all of your financial and legal ties will have been addressed once you have completed your Separation Agreement. The divorce will provide two things: emotional closure and the ability to re-marry.
In the U.S.A., you will need to get advice on the steps required in your particular State to ensure that your financial and legal ties have been addressed.
Many people laugh when I tell them that they will be able to re-marry after the divorce. They tell me emphatically that they will never marry again! However, once people have had a chance to heal and gain closure from the past relationship, many people do in fact move on to form other committed relationships. Many choose to “shack up” with someone again. Many choose to marry again.
Even if you think that you will not be in a position to marry ever again, it’s a good idea to obtain your divorce not long after the Separation Agreement has been completed so that you don’t find yourself trying to plan a wedding and a divorce at the same time!
On more than one occasion, I have had clients tell me something to the effect of: “We’ve planned the wedding! We’ve booked the venue! We’ve sent out the invitations! I forgot that I wasn’t divorced yet!” In these cases, I have made an emergency court application for divorce and I was successful in obtaining the divorce order in time, but my clients and their new significant others were very stressed out in the meantime. Trust me when I tell you that this is not the way you want to set yourself up for a new relationship.
If even you don’t choose to re-marry, you may find that eventually you would like to have the emotional closure of the divorce. People move around a lot these days and it’s not uncommon for people to lose track of each other after several moves. If you don’t have children together or some other reason to stay in touch, you may not know how to contact the other person if you decide to pursue a divorce years later.
I once had a client tell me that he had separated from his wife 30 years prior and now wished to get divorced. He had no idea where she lived (couldn’t even narrow it down to a province) and no idea whether she was even still alive. We had to post notice of the divorce application in the newspaper in 3 cities where my client knew his wife had previously lived. These notices are surprisingly expensive and added significant cost to the divorce. So, don’t wait 30 years! But, seriously, don’t delay too long because it could turn what is a simple process now into a complicated process later.
When you are applying for a divorce based on amicable terms (no-fault divorce), you are eligible for a divorce order once you’ve been living “separate and apart” for a certain period of time which varies by jurisdiction. In Canada, the Divorce Act is federal legislation which applies to all provinces and requires that you have been living separate and apart for one year. In the U.S., each state has its own divorce laws and most require a period of living separate and apart for 6 months to one year.[2]
In Canada, you may be “separate and apart” but still living in the same household as you’re moving through the process of separating your legal and financial ties. Many people continue living in the same household for practical or financial reasons until they have sold their home, the school year has finished for the children, or they have finalized a Separation Agreement. For the purpose of the divorce, you start counting the one year from the date that you had the discussion that you were separating, or the date that one of you notified the other that your relationship was over. In many jurisdictions in the U.S., you will not be considered “separate and apart” while you are still living in the same household. As with the other issues, you should get legal advice to find out the particulars in your State.
In most jurisdictions, you can file for divorce either on your own and then have your partner served with the court documents, or you can file the court documents jointly. There are many resources online for completing the divorce paperwork on your own (without a lawyer) however it is a somewhat complicated and nitpicky process that many people find too difficult to finish without legal assistance.
Check out the online resources and try to decide together how you’ll handle obtaining the divorce. You may choose to address this point in your Separation Agreement so that you are both clear on how the divorce will be handled. You may also choose to include whether you will share the cost of obtaining the divorce order.
[1] Jodi Kimmel, Esq. of the Law Firm of Brett Kimmel Law, P.C. www.brettkimmel.com
[2]https://www.justia.com/family/divorce/
CHAPTER 5
Financial Disclosure
Rules
You are each entitled to full financial disclosure from the other person after separation in order to be able to see the full picture of your financial circumstances. Without all of the in-formation, you can’t possibly know whether you are getting a fair deal. The exact details vary from jurisdiction to jurisdiction; for example, some may not require disclosure of certain documentation unless specifically requested.
Many people try to resist providing all of the required documentation and this unfortunate-ly leads to delay, increased tension between you, increased legal expenses, and then the financial discord often seeps into parenting disagreements – resisting providing financial documentation unnecessarily creates a whole slew of problems.
The issue of financial disclosure is one of key areas where you have some control over the direction that the separation process will take. Be open, honest and forthcoming with requests for information and documentation. This will increase the level of trust between you, which is usually at an all-time low shortly after separation. Taking the high road also inspires a certain level of goodwill from your partner and a desire to reciprocate with similar cooperation. Alternatively, your worst behavior will often bring out the worst in the other person and it will quickly turn into a no-win race to the bottom.
The law requires full cooperation and, if you force your partner’s hand to take court action by trying to maintain secrecy, you will likely have no legal basis to support your position. In fact, you may find yourself being ordered to pay your partner’s legal fees incurred to obtain the financial documentation to which he or she is entitled. In addition, if your separation has deteriorated to the point that you end up in a courtroom in front of a judge, the judge will not look kindly upon your unreasonable behavior and your initial approach may have an effect on the perception of your credibility going forward in the legal proceedings.
I can’t stress enough how much of a fork in the road this issue can be in your separation process. The decisions that you make regarding financial disclosure will either start you on the productive path to amicable divorce or the destructive path to a battle in the courthouse. If you start down the path of litigation, it becomes very difficult to return the process to one that is peaceful, cooperative, respectful, timely, and cost-efficient. In my experience, many people find that being involved in family court, even one step removed from direct participation because of legal representation, further deteriorates their already damaged relationship with their partner. This is especially harmful when they will have to continue co-parenting for years after separation.
Basic Documentation
The basic documents that should be exchanged in most situations in order to have a comprehensive view of the financial circumstances are:
last 3 years of personal income tax returns and tax assessments;
last 3 years of corporate Financial Statements, if one or both of you controls a corporation;
most recent paystub;
statements for all bank and investment accounts (including RRSPs, TFSAs, etc.), mortgages, lines of credit, loans, and credit cards – at the date of separation and at the date of negotiation;
most recent property tax assessments for all properties owned jointly and by either person separately or with another person; and
pension statements.
Additional Documentation
In some relationships, one person handles all of the finances for the family while the other person takes on a different set of responsibilities. This is quite common as it creates efficiencies within the family unit to divide and conquer the day-to-day aspects of everyday life. In these situations, the person who has not had involvement with the finances may require additional documentation to feel comfortable. For example, if someone doesn’t pay the bills on a regular basis, they may not have an accurate sense of how much things cost and may expect there to be more money in savings.
You are entitled to ask for and in most jurisdictions required to provide (if they are re-quested) all of the documents listed in the bullets above dating back to the beginning of your relationship. Now, you should be selective in what you request and only request the documents that you need to verify issues that have arisen in your particular case. Financial institutions often charge for each statement they provide and, more problematic, many financial institutions do not keep records for more than 7 years. If you had a 25-year marriage, you are going to have significant logistical problems in obtaining information dating back to the be-ginning.
Some situations in which you may consider requesting additional documents:
you and/or your partner had assets of some significance at the beginning of your relationship;
you have seen on a recent statement that a large sum of money was transferred out of an ac-count and you don’t know what happened to that money;
you recall you or your partner receiving a large sum of money some time ago (for example, severance pay, the sale of an item owned by your family, insurance proceeds, or from some other specific event) and you don’t know what happened to that money;
you and/or your partner have had a strong career earning good money, neither of you has particularly expensive habits (for example, travelling, shopping, drinking or gambling), and there seems to be less money to show for the years of work than you expected; or
your partner has been secretive about financial matters, either during your relationship or after separation.
A key point to note which may help you wrap your mind around disclosing documents you’d prefer to keep private: disclosing documents does not mean that the other person is en-titled to any portion of any particular asset. You will not be conceding anything regarding entitlement to the property itself by providing the related documentation.
For example, if you have money in a bank account which you believe is your separate property, providing a copy of the bank statement from that account does not mean that you are prepared to the divide the account and it does not mean that your partner is entitled to any portion of the funds – those are separate questions entirely.
In order to move productively towards an amicable resolution of your financial issues:
ASK for the basic documentation, and only the additional documentation that you think you reasonably need in your particular situation;
and
PROVIDE all of the documents that your partner has requested. The documents that your partner thinks he or she reasonably needs may well be different from what you think you reasonably need. Do not impose your judgment on which documents your partner should need. If you don’t have the documents, request them from the financial institution. If you don’t have time, or if your partner would prefer to handle obtaining the documents, provide a writ-ten authorization that will allow each financial institution at issue to release documents to your partner directly.
CHAPTER 6
Processes for Reaching an Amicable Agreement
The processes that I recommend for reaching an amicable agreement are voluntary and non-adversarial processes.[1] They allow for creative solutions that can be tailored to the specific needs of your family with respect to all family law issues. Most importantly, they allow for respectful communication in a way that doesn’t turn your family members against each other as “opposing parties”. All of the processes below are available in Canada and the U.S.A.
Kitchen Table Negotiation
Kitchen Table Negotiation is the cheapest and often fastest way to get to an agreement. If your situation is fairly straight-forward, you and your partner can sit down together one or more times to discuss how you’d like to handle the various issues that apply to you.
You will need to exchange the Basic Documentation and discuss whether either of you re-quire any Additional Documentation from the other. Make notes as you go regarding points of agreement and disagreement.
Although it may seem obvious, keep in mind that in order to enter into a Separation Agreement, you and your partner need to agree on the terms. There may be one or more issues about which you disagree. How do you get beyond that disagreement? One of the key factors to succeeding in negotiation is listening to other person. If you listen with an open mind, you will be more likely to understand the other person’s priorities and concerns which will enable you to create terms of agreement that meet his or her needs. Of course, your partner will need to give you the same level of respect in order to meet your needs.[2]
Consider the following options if you disagree about:
Parenting: seek advice from a Child Specialist to help determine what options may be in your children’s best interests; look online for sample parenting plans for similarly aged children; or if you think that your children may like to provide some input, look into having a Views of the Child report prepared;
Value of assets: obtain appraisals; find Black Book values online; check list prices on Kijiji; or take an average;
Who keeps what: take turns choosing items; flip a coin; offer to trade one item for another desired item; offer to buy a disputed item for a certain price; or sell and split the sale proceeds.
Child Support: take a look at the Federal Child Support Guidelines to review the rules; there are quite a lot of rules, variations and exceptions so you will likely both need to obtain independent legal advice unless your incomes are basic employment incomes. Legal nuances arise if people are self-employed, unemployed or underemployed, and with certain parenting arrangements, among the myriad other complexities of human life (particularly heavy debts load from the relationship, one parent moved away from or with the children, etc…)
Spousal Support: this is frequently a hotly disputed issue and you will likely both need to obtain independent legal advice if it is a stumbling block.
If you are able to reach an agreement on all major issues, you have two good options:
1. The two of you can retain a Family Law Mediator to draft the Separation Agreement according to your joint instructions. You will be advised to consult separate lawyers to get independent legal advice before signing the Separation Agreement. Getting legal advice is always a good idea when you are signing a legally-binding document but it is your choice whether to get legal advice or not. Many people who have successfully discussed the terms of an agreement on their own prefer the comfort and simplicity of hiring one professional with whom they discuss their requirements together.
2. One of you can retain a lawyer to draft a Separation Agreement on the terms that you discussed. The lawyer will likely bring some details to your attention that should be addressed and that will require some further discussion with your partner. Whoever retains the lawyer will get advice from that lawyer on the terms of the agreement, to ensure that the agreement addresses all of the necessary details and that he or she understands exactly what all the terms mean. The other person can obtain independent legal advice from another lawyer before signing. One lawyer cannot provide advice to both people because lawyers have a duty of loyalty to the client that is not possible to fulfill to both people. The risk of this approach is that it can turn what started out as an amicable process into an adversarial process.
I see both of these scenarios very frequently in my practice because these are two of the most cost-effective ways of having a proper Separation Agreement prepared. For many families, it is unthinkable to pay legal fees for representation by two lawyers because it is simply unaffordable.
If you are able to reach an agreement on some issues but not all, you could choose to continue your discussions through Mediation, Mediation/ Arbitration, or Collaborative Law.
Mediation
Mediation is a highly effective method of helping people to reach agreement in most con-texts, including family law. The mediator is neutral, meaning not representing the interests of either you or your partner. The mediator can give you legal information but not legal advice. This is a bit of a fine line but essentially means that the mediator can discuss the law with you and the factors that would normally be considered regarding particular issues, but cannot ad-vise you as to how the law would apply in your case or what you should do.
In order to get legal advice, you would need to speak to a lawyer about your case, which you are encouraged to do before or during mediation, and/or before signing the Separation Agreement. Some people choose to attend mediation along with a lawyer, either because they would like to have the ability to obtain legal advice on the spot regarding possible settlement options or because they simply feel more comfortable discussing options with the help of someone “on their side”.
There are two main ways that people arrive at mediation:
1. The couple decided at separation that they would like to limit their legal expenses and approach their issues in a productive, realistic and amicable manner. They would rather save their money for their children and for their retirement, not give it to lawyers! They jointly retained a Family Law Mediator to help them resolve their disagreements.
2. They retained lawyers who have been preparing their case for a family law trial for of-ten over a year. Resolution has taken so long that a number of interim court applications have been required to bring some order into the family. Shortly before the date set for the trial to begin, and usually tens of thousands of dollars of legal fees into the case, both parties and their lawyers attend mediation in a “last ditch” effort to settle matters. The mediation almost always succeeds. Only approximately 2% of family law cases actually make it to trial.[3]
Mediators follow somewhat different practices but most will likely meet with each person individually first. Once the mediator is confident that mediation is appropriate and if both people would like to work with the mediator, subsequent meetings would normally be all together. However, there is a lot of flexibility with communication these days and mediation can proceed by internet technology (similar to Skype but with the ability to jointly view documents on the screen as well), by conference call, or by email communication that is not in real time.
The mediator will encourage conversation about each person’s needs and goals (also referred to as interests) in order to try to achieve a creative solution that meets everyone’s needs. An interest is a deep motivation such as “I would like to be financially secure”. In contrast, a position is the stated desire for a specific outcome such as “I want the house”. The mediator will generally discourage discussion of positions, particularly at the beginning of the process, in order to do the groundwork of uncovering the deeper interests which will increase the likelihood of reaching a mutually satisfactory resolution.
The classic mediation example is the story of the two people who were fighting over an orange. They both wanted the whole orange but were going to settle for cutting the orange in half. However, they started talking and discovered that one person wanted to make juice with the inside of the orange and the other wanted to make marmalade with the orange rind. By discussing their motivations and goals, they were able to reach a win-win solution that worked better for both of them than just cutting the orange down the middle. While this is a simplistic example, there are many ways in which creative options can be crafted on virtually all family law issues to suit the needs of your particular family.
The mediator’s role is also to help keep the conversation on a productive track, coordinate sharing of documentation, organize meetings, suggest details that are normally addressed in a Separation Agreement that may be appropriate to consider, and communicate with lawyers (if necessary).[4]
Lawyers who are also Family Law Mediators are highly trained to assist with dispute resolution specifically in the context of separating couples. For example, in British Columbia, a lawyer who would like to provide family mediation services must complete approximately another 100 hours of training in order to become accredited by the Law Society of British Columbia as a Family Law Mediator. However, mediation is entirely unregulated in some jurisdictions. Do your research to find a skilled and experienced mediator. Buyer beware!
There are free mediation services provided by non-lawyers at non-profit organizations in some provinces and states however they are usually only allowed to help people prepare agreements regarding parenting and support issues – in most jurisdictions, they cannot deal with property and debt. It’s a good option though if funds are tight and your issues are pretty straight-forward.
In my experience, when people have made the decision to attend mediation at the outset, many are able to get to the terms of an agreement in 2 – 4 joint meetings of 1 – 2 hours each, although it really depends on the number of issues to be addressed and the complexity of those issues. Thereafter, the draft Separation Agreement will be prepared by either the media-tor (which is allowed in some jurisdictions, such as British Columbia, but not allowed in others, such as Washington State) for the parties to review and there is usually some more discussion required to finalize the wording that both people will find acceptable. In contrast, when mediating on the eve of trial and the pressure is on to reach agreement, mediation tends to be scheduled for a whole day and we try to end the day with a signed Separation Agreement. The longest such mediation I have attended finally settled after 13 hours. In either case, mediation is far more cost-effective than court.
Some of the benefits of this process are: it has a very high success rate (no matter how far apart people are in terms of their desired outcomes, family law mediation is almost always successful); it is private and doesn’t become part of the court record; it allows for creative solutions specifically tailored to your family; it is cost-effective; it can be usually scheduled quite quickly; and it helps maintain positive relationships by encouraging respectful communication and focusing on mutually beneficial outcomes.
Mediation has very few downsides. There is a potential for a slight delay if the mediation process doesn’t successfully resolve some or all of the issues. There is a potential for a skewed power dynamic in the relationship to result in an unfair bargain (this could happen if: one per-son is significantly more educated than the other; one person has been in charge of the finances for a long time; one person has been emotionally, physically, sexually, or financially abusive to the other; etc.) The mediator will assess for risk factors before mediation begins and will advise if mediation seems appropriate in the circumstances. Many of these risk factors can be adjusted for by attending with a lawyer, attending at a distance by web-conferencing, and obtaining expert advice as needed (for example, from an accountant).
People tend to be more content with an agreement that they helped craft than an order that some judge who doesn’t know the family handed down after reading affidavits and/or listening to a few witnesses. One British Columbia Supreme Court Justice famously warns people at Judicial Case Conferences (a brief mediation-type process with a judge that people in the court process must attend before they are allowed to file any applications) that: “There are no winners in family court. On a good day, I can make both parties unhappy.” This is sarcastic but fair warning that the court is not equipped to deal with the intricacies of families. When people are satisfied with the agreement that they have had a hand in negotiating, their compliance with the terms of the agreement increases. This reduces the potential for future conflict.
How “far apart” people are in terms of their desired outcomes is a relative concept. For ex-ample, I have attended mediations in which the settlement offer and counter-offer prior to mediation were $20,000.00 apart and I have attended mediations in which the offer and counter-offer were millions of dollars apart. In each scenario, the very human instinct of my clients was to feel trepidation and concern that the disagreements were too entrenched to obtain a successful outcome without the intervention of a judge. However, I can happily say that almost every mediation that I have attended has resulted in a comprehensive resolution of all the issues for the parties. There is just something about being in a room together with people who can help settle the mess of issues (thereby eradicating the otherwise pending stress, uncertainty, and legal fees) that motivates people to reach agreement when agreement has previously been elusive. Mediation is extremely effective for resolving family law issues.
Mediation/Arbitration
I am somewhat hesitant to include this option as Arbitration is similar to court in many ways however it can be an efficient to way handle isolated issues that just can’t be resolved by other means.
Mediation/ Arbitration is a combined process that people enter into at the beginning of the process. It is essentially mediation with the built-in back-up option of arbitration in the event that mediation fails. Arbitration can be thought of as a private court-like process; the arbitrator is the judge who decides the outcome based on the evidence and the law.[5] This dual process is very popular in some jurisdictions, such as Ontario, and much less so in others.
It is an interesting hybrid process in that it is voluntary at the beginning but binding once entered into, i.e. if the mediation phase is unsuccessful, the parties are bound by their agreement to have the outstanding issues decided by the arbitrator. The arbitrator’s decision is legally binding but can be appealed on the same basis that a court order could be appealed. The mediation phase is non-adversarial, and the arbitration phase, if it proceeds, is adversarial.
There are a couple of different approaches to this process. One involves using the same professional for both the mediation and arbitration components. The other involves using a different mediator and arbitrator in order to get around the possible problem of the mediator having heard something prejudicial during the mediation session that could affect his or her decision unfairly as the arbitrator.
In addition, you will be able to decide based on your issues in what order you would like to organize the different phases.
For example, the mediation phase most commonly proceeds first. Then, if there are one or more issues which can’t be resolve in mediation, you can decide to end mediation and move on to the arbitration phase.[6]
Occasionally, there can be disagreement on one significant issue which is holding up agreement on all other issues: for example, the question of whether two people are “spouses” under the applicable legislation, or whether an old Marriage Agreement remains valid. Both of these are examples of preliminary issues, the outcome of which will lead to vastly different rights and obligations for the parties. In such cases, it can be effective to decide the preliminary disputed issue through arbitration first, and then mediate the rest of the issues upon receiving the arbitrator’s decision on that key issue.
Lastly, in some cases it might be appropriate to go back and forth between the mediation and arbitration phases multiple times as required to resolve the issues.
Some of the benefits of this joint process are: if mediation fails, there is no delay before a resolution is reached; the process is private and doesn’t become part of the court record; it is usually possible to obtain dates for mediation/ arbitration much sooner than court time; you have the ability to choose a decision-maker with knowledge, experience and interest in family law; and it creates a direct incentive for the participants to reach agreement in the mediation phase.
The downside of this approach is that it introduces an adversarial element at the end of what was intended to be an amicable process. Depending on the issues to be decided by arbitration and the way in which you handle presenting your case to the arbitrator, the process has the potential to become just as antagonistic as court.
Collaborative Law
Collaborative law is an excellent option for many cases. In this process, each person retains his or her own collaborative law lawyer. This lawyer will be specially trained in the collaborative dispute resolution process which is quite similar to mediation but with the benefit of individual representation.
Although each person is represented by a lawyer, the model uses the team approach to working towards resolution and specifically agrees by contract at the beginning not to use any court processes. This removes the threat of court from settlement conversations and focuses on more constructive methods of reaching agreement.
Work is done through a series of meetings and, as with mediation, there will be an exploration of your needs and goals (interests). Once the interests have been fully explored, there will usually be a period of brainstorming possible scenarios. The list of possibilities will be evaluated against the interests to see which may be most suitable. From the narrowed down list of options, details can be tweaked to further customize the final terms of agreement.
The meetings may be scheduled for 3 – 6 team members depending on the circumstances and goals at hand. For efficiency, you will hire a neutral expert on issues that require some other professional input, for example you can jointly retain a Certified Business Valuator in order to analyze and provide an opinion regarding the value of a family business. By choosing the expert together, you get away from the old problem of dueling experts. If there are difficult issues to resolve regarding children, you can hire a Child Specialist to assist with opinions and suggestions. Lastly, if a poor communication pattern is proving to be a barrier to reaching an agreement, you can bring in a Divorce Coach, who will help overcome such emotional hurdles and others. All of these professionals will not be needed in all cases and, when they are retained, each professional will not necessarily need to attend each meeting. The professionals will tailor the approach to best fit your family’s needs based on communication with the clients and the other professional team members. Some examples of meeting configurations are: clients & accountant; clients and lawyers; clients and lawyers and child specialist.[7]
One of the main benefits of this approach is that it can significantly equalize an unbalanced power dynamic. Both lawyers must hold their clients to their obligation for full disclosure and good faith negotiation. The team approach can be very helpful in working out complex issues without getting mired down in the mess of adversarial, conflicting positions.
Collaborative law can certainly be more cost-effective than court. However, if it is used for complicated cases or cases in which one or both of the parties require a lot of professional support, there won’t necessarily be a quick and easy resolution. Complicated issues take time to work through, from gathering the necessary documentation, to obtaining expert opinions, to considering various possible settlement options. However, in these cases, the big benefits are that the process is amicable, dignified and private.
For example, I worked on a complex collaborative case recently which involved almost every family law issue imaginable, including division of a very significant amount of wealth, complex family business structures, the care and support of young children, a potential move to a different city, and spousal support. Any one of these issues could be highly contentious and incendiary in the context of family court, never mind all of them! However, we worked through the issues methodically, sensitively, and as appropriate for the family over time. We ended up with a detailed Separation Agreement on all of the issues and a set of parents who were able to look each other in the eye and continue co-parenting their children in a healthy and constructive way.
A couple of cautions regarding the process: 1) if one of you chooses to leave the process and start a court action, both of you will be required to retain new lawyers. Neither collaborative lawyer will be allowed to continue representing you. This is actually a benefit as well as a risk because it creates an incentive from the outset for you and the lawyers to do your best to reach a settlement. 2) As with mediation, there is the risk of the loss of time if the process doesn’t conclude successfully.
[1] Mediation/Arbitration is a bit of an exception.
[2] World-renowned mediator and negotiator, William Ury, has several informative videos on this website: http://www.williamury.com/videos/. “The Power of Listening”, “Going to the Balcony”, “Rotman School: Getting to Yes with Yourself”, and “How to Effectively Per-suade” may be particularly helpful.
[3] Mary Bess Kelly, “Divorce cases in civil court, 2010/2011” Statistics Canada catalogue no. 85-002-X: http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11634-eng.htm
[4] See Lisa Nelson’s video “What is Divorce Mediation?”: https://www.youtube.com/watch?v=opRvQiNL2H0
[5] The arbitrator is bound by the rules of natural justice which means that the process must be fair, transparent, and all parties must have an opportunity to be heard.
[6] See LegalYou’s video “Mediation and Arbitration: What You Need to Know” which describes the differences between mediation and arbitration, although it doesn’t describe the hybrid process: https://www.youtube.com/watch?v=K_2NrlhwTfQ
[7] For a brief introduction to collaborative law, see Barbara Gordon on TVO’s The Agen-da with Steve Paikin: https://www.youtube.com/watch?v=3zS0vnIm5oc. See also Christophe Imhoos’s introductory video “Collaborative Law”: https://www.youtube.com/watch?v=-djk4MSV33Y
CHAPTER 7
Starting on a Pathway to Amicable Divorce
Some of the steps you will need to take to get started on a pathway to amicable divorce may seem counter-intuitive to you however there are specific strategic advantages for each one.
Treat Your Partner As You Would Treat a Business Partner
Be courteous. Answer emails, text messages and phone calls. Don’t badmouth him or her to friends, family, co-workers, and especially not on social media or to your children. Do what you say you’re going to do. Communicate important information. Provide requested documentation in a timely manner. Do not treat the other person as the enemy.
You will have to continue to work together on the resolution of all of the issues arising out of the breakdown of your relationship and, if you have children, you will have to continue to work together and co-exist as parents of shared children for years to come (including attending birthday parties, graduations, weddings, and so forth). It can be helpful to consider how you’d like to see your relationship years down the road – for example, you probably don’t want your children to have to worry about how to plan a wedding with both of you in attendance. Don’t do anything now in the heat of the moment that will create tension and unpleasantness for years to come.
Separation can be an overwhelming time of intense mixed emotions, including sadness, guilt, denial, relief, anger and fear, to name only a few. Although it can be tempting in a moment of disagreement to let your anger flow, it will generally be better in the long-term for your family if you take a deep breath, work hard on maintaining your patience (sorting out the details of separation usually takes longer than people hope and expect), and give both you and your partner time to understand the shifting needs of your family as you move from being a one household family to a two household family. Handling your emotions in a constructive and respectful way is an important component of moving ahead on the path towards amicable divorce.
Don’t Make Any Significant Changes
If you have been paying for all of the family bills, continue to pay all of the bills until you and your partner have reached an agreement for how expenses will be handled going forward. Neither of you should withdraw or spend significant sums of money without the consent of the other – in most cases, this is not the time to buy a new vehicle or take a trip to Las Vegas! Some people find comfort in making arrangements with their financial institution to require both of their signatures for withdrawals from savings and investment accounts until they have divided their accounts.
If there is no safety concern, do not move out with the children. The children are entitled to a stable environment and shouldn’t be moved around move than necessary. Wait to move until you have worked out a parenting plan. However, safety is the first priority and you should obtain legal advice immediately if you believe that you need assistance with moving yourself and your children to a safe location.
Discuss the Various Options for Pathways to Amicable Divorce
Consider letting your partner know about this book or some of the many online resources to which the book refers. A little individual reading and research can be helpful before dis-cussing the options.
Review together your understanding of Kitchen Table Negotiation, Mediation, Mediation/ Arbitration, and Collaborative Law so that you are on the same page in terms of pros and cons. Discuss which option seems appropriate given the level of complexity of your issues and the state of your ability to communicate with each other at the present time.
You may find that one person has no particular preference while the other person is drawn to a certain process option. It may or may not be difficult initially to agree on a process. Take the path of least resistance and choose a process that you could each “live with” as a test-run. You could then work on choosing the appropriate professional(s). The processes are voluntary so either of you could choose to end the initial process if you feel that it is not working well for you.
Choose Your Lawyers / Mediator
Regardless of which process you choose and even if you don’t hire a lawyer to represent you throughout the process, you should get independent legal advice from a family law law-yer at some point in the process, whether it is at the beginning, partway through negotiations, and/or before signing the draft Separation Agreement.
Ask around for recommendations. Ask your friends, neighbours, co-workers, and family members for feedback regarding specific family law lawyers. You should find out what they liked about certain lawyers and what they didn’t like – this is important because it may be that the other person’s goals were quite different from yours and that the recommendation would be poorly suited to your situation.
For example, I recently had a meeting with someone who was seeking a second opinion regarding spousal support. He had seen a well-regarded lawyer who had advised him not to pay a dime of support and to let his wife “come after him” for it. After providing me a history of his relationship, which included all of the classic markers for the wife’s entitlement to spousal support and no contraindications whatsoever, he asked me what I thought. I respond-ed with “Well, that depends. Do you want to fight about this issue in court?” The advice he had received would force the man’s wife to take court action in order to obtain a reasonable result. He told me that he absolutely did not want to go to court and that he preferred a quick and realistic settlement. We proceeded to discuss possible ways of structuring support which might work for him, ways in which he could mitigate his future risk, and terms which could create some certainty so that he could plan his life moving forward. The previous lawyer’s advice was a mismatch with this client’s goal of resolution.
Don’t forget that lawyers are not one uniform kind of person, even within a certain area of law – some are peacemakers at heart while others enjoy the thrill of debate and banter; some are diplomatic and some take pride in their reputation for being a bull dog; some are more focused on the big picture of reaching overall resolution while others are focused on advocating for a win on every legal issue. Some might say that these are all strategies that can be employed by any lawyer depending on the situation, rather than being characteristics. Regard-less, in my opinion, it is the rare individual who does an excellent job with both styles of dispute resolution. An amicable problem-solver and a tenacious litigator have very different skill sets, experiences, outlooks, and instincts. Most lawyers will have a dominant strength in one or the other style.
There is no right and wrong in terms of style and each style has merits in certain circumstances. The key is to choose the right style to help you reach your goals in your circumstances. If you and your partner are both basically reasonable people who disagree about some is-sues, you will probably benefit from a lawyer who will work towards a resolution with you in a diplomatic and respectful way without involving court processes. In this case, you will do well to research the lawyers in your area who are trained in collaborative dispute resolution and mediation. If you are in a relationship with someone who is a bully, an abuser, and/or has a serious personality disorder, mental health issue or substance use problem that prevents him or her from engaging in rational discussion, you will likely do better with a family law litigator who takes an aggressive court-based approach.
Lastly, given that we’re human, there’s no getting around that some lawyers are more knowledgeable, better organized, more emotionally intelligent, and/or better communicators than others; attributes that don’t necessarily have anything to do with a person’s years of experience or hourly rate. Try to find out about these types of characteristics as well.
Much of the above applies to choosing your mediator as well. Make your choice based on a trusted recommendation and some of your own research.
See a Counselor and/or Doctor
Separation can be devastating for families, whether or not there are children involved. There are many issues that arise with which a lawyer can’t help because they are not legal is-sues. Our society has become overly focused on the law with respect to the breakdown of a family but the law is not equipped to provide all of the assistance that most families need. Serious emotional issues can arise for the separating couple and for the children, during the deterioration of the relationship and upon separation. These issues will not resolve themselves.
There are many different approaches to counseling so research the options to decide which will work best for you and your family. Many people don’t want to be involved in the stereo-type of counseling: flaky discussions reflecting back on their childhood. There are now future-focused, pragmatic, behavior-based methods that can help with specifics, for example appropriate communication for co-parenting or handling feelings when the other person re-partners.
Unresolved emotional issues very frequently interfere with the resolution of legal issues. It can lead to one or both people causing long delays by refusing to engage in discussion, get-ting stuck on a particular issue, and/or creating conflict in situations that should objectively be fairly uncomplicated.
In addition, even if you and your partner are doing your best in good faith to move to-wards an agreement, it may be that you experience a significant amount of stress and anxiety during the process due to the many unknowns in your future. Gathering and exchanging the necessary documentation and negotiating the terms of an agreement usually take longer than people hope and expect. I’ve had clients tell me that “I need an agreement done now. I can’t handle the stress anymore. I’m so anxious that I can’t sleep.” Unfortunately, when you are working towards an agreement, you need to move at the pace of the slower person. One per-son will always be further ahead than the other in the grief cycle[1] relating to the breakdown of the relationship and therefore will have to wait for the other person to become mentally ready to finalize the details of the separation by agreement. The very nature of an agreement is that you need the other person to agree with you, which cannot be forced. If you are the person who is ready to move on and waiting for the other person to come around, you may need to deal with your anxiety with the help of a counselor or medical professional. There’s no remedy in law for anxiety.
If you have children, there is no question that your children have been affected by your separation. They may seem fine. They may be acting out. Either way, allow them to express their emotions and get some professional assistance with the best way to help your children move forward.
Wait to Start a New Relationship
This suggestion is not based on moral considerations; it is a strategic issue. More often than not, a new boyfriend or girlfriend on the scene is massively disruptive to the negotiation process underway for the Separation Agreement.
Regardless of which person ended the relationship, a new relationship can cause surprising-ly intense emotions for the “replaced” partner. This often translates into complications such as some manner of a financial backlash, parenting altercations, and general escalation of disagreements.
Depending on the nature of the new relationship, it can have bearing on whether and how much spousal support may be payable. The new partner may also become a factor in the parenting arrangements for the children (for example, the new partner will be under scrutiny to determine whether his or her presence around the children is in their best interests).
If you can manage to wait to start a new relationship until your Separation Agreement has been finalized, you will avoid one possible hot button issue that commonly derails originally amicable discussions.
[1] Elisabeth Kübler-Ross originally identified the 5 phases of grieving: 1) Denial and isolation. 2) Anger. 3) Bargaining. 4) Depression. 5) Acceptance. The phases are not linear. People can move back and forth between different phases before finally reaching acceptance. Elisabeth Kübler-Ross, On Death and Dying, Routledge, 1969.
CHAPTER 8
Concluding Thoughts
The most important takeaway from this book is that amicable divorce doesn’t just happen. It’s not something for which you can simply hope and pray. You and your partner will need to make deliberate choices to start on a pathway to amicable divorce and to stay on that path. You have to be very intentional about making constructive choices at each fork in the road. If you are not both focused on maintaining an amicable process and vigilant about retaining professionals who are committed to proceeding amicably with you, you could very easily end up on the adversarial path because it is the default pathway in the traditional legal system.
To paraphrase a pop culture aphorism: “Do or do not [use a pathway to amicable divorce]. There is no try”.[1] You must stay focused on your values to achieve amicable divorce. It’s a commitment that you both need to make at the beginning of your separation for the good of your health, the well-being of your children, the functionality of your co-parenting relation-ship, and the state of your net worth.
Using the analogy of an airplane, business coach, Tim Enoch, relays a motivational story for business leaders which can apply just as well to how you manage your amicable divorce:
“For every single degree you fly off course, you will miss your target landing spot by 92 feet for every mile you fly. … So, the longer you travel off course, the further you will be away from the intended target. Is that acceptable? Not if I am on the plane. On a flight from JFK (New York) to LAX (Los Angeles), that might put me 40 miles out in the Pacific Ocean. One degree off could be the difference between making it to an important meeting on time, or using my seat as a flotation device. … [Nothing] fails overnight. Cataclysmic failure generally comes from a series of small, correctable failures. I like to call these failures “one degree failures.” Just as it is hard to recognize being one degree off while flying at 30,000 feet, it is hard to realize these “one degree failures” in our own daily lives. That’s why we need a crystal clear flight plan… Straying off course doesn’t have to result in cataclysmic failure… Any-one can make in-flight adjustments along the way. We all get derailed from time to time. We all experience some type of failure. Champions realize they are off course … make corrections, and get back on track. There is no need for despair if you are off course. However, there is a need to do something about it. … A few simple disciplines can have a major impact on how your life works out in the next 90 days, let alone in the next 12 months or the next 3 years. If you are on course, stay vigilant. If you aren’t, find your way back.”[2]
I see people every day making “one degree failures” with respect to their separation. They let their anger, impatience, jealousy or grief takeover their better judgment and take actions which slowly corrode their ability to communicate effectively with their partner. Snarky comments are made. Emails go unanswered. Personal property is taken without consent. Children are dropped off later than agreed. Each one of these is perhaps small and meaning-less on its own. However, when these types of transgressions continue to happen, they chip away at any remaining trust and goodwill in the relationship. They breed fear, suspicion and anxiety, making an amicable divorce less and less likely over time. With each additional “one degree failure”, you move further away from your target of a respectful and efficient divorce. If you have veered off course, don’t forget that you have the ability to make course corrections: be polite, proactive, respectful, honest and cooperative going forward. If you are on a pathway to amicable divorce, stay vigilant. If you aren’t, find your way back.
[1] Yoda in The Empire Strikes Back (1980).
[2] Tim Enoch, “One Degree Off Course”: http://www.irrefutablesuccess.com/2010/04/one-degree-off-course/
CHAPTER 9
Epilogue
The writing of this book turned out to be a transformative experience for me. Life-changing, in fact.
Although the idea of writing a book came about during a pragmatic brainstorming session about marketing, and the project then got started with the goal of increasing public awareness of options for amicable divorce, the process resulted in a clarifying of my personal values and opinions to the extent that I could no longer continue on the same career path.
When I started writing this book, I was a Family Law Lawyer and Family Law Mediator practicing at a highly respected full-service law firm. I had brilliant colleagues, a beautiful office, and a long, bright future as a lawyer ahead of me.
As I researched and wrote Pathways to Amicable Divorce, I was reminded over and over again about the trauma that families routinely and often unnecessarily face as they proceed through the adversarial separation and divorce process, a life transition experienced by many people two or three times over the course of their lives.
As I detailed the various pitfalls to avoid, it became clear that my role as a lawyer within an adversarial process frequently worsened the relationship dynamic of separating couples. No matter how respectful or solution-focused my approach, the fact that I was a lawyer was often intimidating to the other party who would then respond to me directly or through counsel by being defensive and uncooperative. To add further insult to injury, the long and drawn-out adversarial process would result in higher and higher fees for my client who had hired me (a lawyer known to be settlement-oriented) with the hopes of attaining a focused and efficient resolution. I was frequently disheartened by the inefficiency and unhealthy nature of the adversarial system for families.
I could also no longer ignore that my personal bias is strongly against the use of coercive action within a family unit. Just as coercion within an intimate relationship is clearly wrong, I believe that the coercive nature of Court Orders renders the family court process inappropriate for most families, with only a few specific exceptions. Coercion, in the form of a Court Order or otherwise, will commonly lead to more animosity and less ability to cooperate – both of which are extremely destructive for families who will need to maintain ongoing relationships.
For those exceptional cases in which people need the protection and the force of the Court, I am grateful to the many excellent family law lawyers who dedicate not only their professional lives but also their emotional and psychological energy to serving clients in need.
I came to realize that my goal of helping families transcend challenges and reach focused resolution can best be accomplished in full alignment with my values. I decided to leave the adversarial process to focus wholly on mediation. Through this book, Vinters Family Mediation was born, now re-branded as Modern Separations.
Online Resources
For access to the extra content, please use the links on the following webpage:
www.modernseparations.com/pathways
There are dozens of links to online resources, including frequently asked questions, videos, worksheets, professional groups, and more under the following headings:
Acknowledgements
First and foremost, I wish to express my immense gratitude and love to Juris, Niko and Luca for their patience, encouragement, and help during the many hours of research, writing, brainstorming, and planning.
I extend my sincerest gratitude to the partners of Nixon Wenger LLP for the grace and kindness with which they have handled my unexpected career transition arising out of the writing of this book.
Many thanks to my brilliant law school professor, Gillian Calder, who first motivated me to dedicate my career to the field of family law and now has contributed her invaluable perspective and support in the Foreword.
Finally, thank you to my life-long friend, Jodi Kimmel, a high-flying New York divorce attorney to the stars, for providing clarity on the rather complex American divorce law system.
Christina Vinters
April 2016
Author Information
Christina Vinters is a Chartered Mediator at Modern Separations Ltd., an innovative mediation firm working to increase access to justice and healthy, focused resolution by providing flat fees, daytime or evening meetings, and web-conferencing services for families across Canada and parts of the United States. She was a Family Law Lawyer, Collaborative Law Lawyer, and Family Law Mediator at a large full-service law firm in Vernon, British Columbia until 2016. She completed an Honours Bachelor of Arts degree at the University of Toronto and a Juris Doctor degree at the University of Victoria Faculty of Law where she won the Horne Coupar Prize in Family Law. She is a (Non-Practicing) member of the Law Society of British Columbia. She focuses her practice on helping clients amicably resolve their family law issues as well as consulting other divorce professionals on how to build a successful peacemaking practice. In addition to volunteering in her community, she enjoys drinking coffee on the back porch, reading, spinning, and travelling with her husband and two teenage sons.