Family Law Articles
14 Smart Steps to Protect You and Your Children When Your Spouse Says “I want a Divorce”
SMART STEP #1: Do not move from your home, leaving your children and spouse living there without a properly documented, written and witnessed Parenting Plan in place. Ontario Courts decide on temporary and final custody of children based upon their best interests, and the status quo is often given significant weight in the decision. Children have gone through so much change when their parents separate such that if they are doing okay following a separation, Courts will often not make any changes to their care arrangements. So if you leave your children in the primary care of your spouse, it’s not likely that a Court will make a change after the fact unless there’s a compelling reason. Other arrangements are possible, and as long as the care arrangements are properly documented in a domestic contract, changing your residence may be beneficial for you and your children. Another option is nesting, to minimize the disruption to your children while you and your spouse are attempting to work out their care arrangements, with competent legal counsel.
SMART STEP #2: Do not involve your children, no matter how old or how mature they are, in any discussions about your spouse or their living arrangements, without proper professional counseling and advice. Children do not want to have to decide where they want to live. Children are in the next to impossible position of having to decide typically between both parents that they love very much.
SMART STEP #3: Financially support your children. Child support is a reality. Child support is a must, not a maybe anymore. Child support comes first before every other creditor in the eyes of Ontario Courts. Ontario Judges routinely order child support to be paid going right back to the date of separation. If you want to avoid costly disputes, talk to a lawyer very knowledgeable and family law and find out how much child support should be paid and be sure to pay it. Not to do so constitutes blameworthy conduct and let’s face it, Judges are all human and just like any contest, Judges pick sides early and often and it’s too easy to decide against somebody who is not paying child support right away.
SMART STEP #4: Emotionally support your children. This doesn’t mean giving them everything they want at a difficult time, but it does mean listening and not asking. It does mean talking and not telling. Get professional parenting advice on how to deal with your children in a manner that is best for them and will help you. You may be crushed, but you’re the parent and your children need your emotional support at this difficult time.
SMART STEP #5: Do not let your children hear anything about your difficulties with their other parent. No matter what your children might say to you and no matter how often they may make it seem like they agree with you and not the other parent, do not involve them in your dispute in your dispute. Social science tells us that the biggest predictor of poor outcomes for children is conflict between their parents. A smart parent considers this reality in each and every step in reaching a resolution and in parenting with the other parent even after a Divorce is finalized.
SMART STEP #6: Speak to a family professional. It’s a difficult time. You can speak with a professional about all of the difficulties and how you’re feeling. Don’t tough it out alone. And, this is the person you can speak to about personal matters, and leave those matters outside of the discussions you’re having with your lawyer.
SMART STEP #7: Keep all of your financial documents until you are told that you do not need them anymore. Sometimes receipts are necessary to prove expenses and help in the determination of your income for support purposes or the appropriate amount to be paid for children’s expenses. Sometimes statements are necessary to prove lifestyle. Most times statements are necessary to prove asset values and substantiate how property will be split up after separation.
SMART STEP #8: Do not delete any electronic data. Maintain it. Issues may arise in your separation where electronic data may be crucial evidence. If you think it is negative, know that experienced family law lawyers know how to recover deleted files – the hire expert computer consultants! If something should be there and it’s not, an adverse inference will be drawn against you. Tell your lawyer what is there when asked in your lawyer, if experienced, will deal with it in a way that minimizes any damage or maximizes any benefit.
SMART STEP #9: Make your social media accounts and e-mail accounts private. Again, don’t delete things, but don’t make them available to the public and don’t let your spouse access them. Expect your spouse and his or her lawyer to look at your social media if it is available. Don’t be surprised if your spouse tries to open your e-mail account. In one case, a spouse deleted all the pictures of her soon-to-be former spouse, while at the same time alienating the children from the other parent. That parent was just helping prove that alienation was occurring. Imagine all of those great pictures showing vacations post separation and a party or two, while someone is trying to suggest there making little to no money. Don’t post, don’t delete, but just change your passwords and keep everything private.
SMART STEP #10: Make a new Power of Attorney for Property right away or at least revoke any existing Power of Attorney for Property in which you’ve appointed your spouse. If your spouse has possession of your Power of Attorney for Property, he or she can do anything you can do with your assets. We have had one case where a spouse transferred assets from their spouse’s name using a Power of Attorney for Property. Speak to your estate planning lawyer right away.
SMART STEP #11: Reconsider your beneficiary designations on any registered plans or life insurance and review joint accounts as well as the ownership of your home, recreational property, etc. In some cases, you will need to leave your life insurance, with your spouse is the designated beneficiary in place as security for support. But if you don’t make any appropriate changes, it may well be that your spouse will receive the benefits of any registered plans or life insurance in the event of your death. You do not think it will happen, but we have had two cases where a spouse has died post separation, without making any changes leaving their separated spouse with all of their registered savings plans and insurance proceeds as well as the matrimonial home in the cottage by right of survivorship.
SMART STEP #12: Closely monitor joint bank accounts, joint lines of credit and supplementary credit cards. It may be best to close joint accounts, close any joint line of credits and terminate any supplementary credit cards, but if there is a support obligation, careful guidance is needed. You do not want your spouse maximizing joint line of credit are taking all of the money from the joint bank accounts or spending recklessly on any supplementary credit cards, but access to those assets and credit may be necessary. At a minimum, closely monitor the accounts and get legal advice from a knowledgeable family law lawyer.
SMART STEP #13: Don’t sign over any assets to your spouse. Recognize that separation is a tragic event for most people. It is entirely understandable and common if you have not come to terms with it and your spouse is just telling you he or she wants a separation, then you’ll be devastated and then you’ll be in denial and you will attempt to be extra nice to your spouse and that may include signing whatever he or she asks you to sign. Don’t sign anything don’t give over anything without being in a position to make a businesslike decision after having obtained advice.
SMART STEP #14: Absolutely do not sign a Separation Agreement or accept service of an Application for Divorce without being a proper position to be able and to be fully willing to settle all of the issues that arise from the separation. Any Separation Agreement is meant to be a long-lasting, final document. It is absolutely one of the most important documents that you might sign in your lifetime.