Family Law & The Practice: The Basics
Approximately forty per cent of all marriages end in divorce. Imagine all of the relationships that come to an end that never result in marriage! So one thing is for sure – if you are experiencing difficulty in a relationship, you’re not alone. Better times lie ahead. Three quarters of Canadians who divorce will remarry in five years. That prospect may not seem attractive at the moment, but rest assured, happier times will come. You are no doubt experiencing painful difficulties. You don’t need a lawyer to tell you that, but you need to recognize that reality. You might be asking yourself, “how can this be happening to me,” or “I can’t believe that … .” This is entirely normal. Separation usually involves denial, hostility, depression and in time, acceptance. Only after you’ve accepted your situation, will you be in the “right” frame of mind to make long lasting and significant decisions. Knowing the decisions you face are some of the most important ones you’ll ever make, we’ll ensure that you’ll understand the implications of all of them. You won’t make any decisions based upon emotion. Indeed, we earn our keep by protecting the interests of our clients, and ensuring that they make rationale, responsible decisions.
Things That Matter the Most
Children – At the end of the day, one parent will usually have day to day care and control of the child(ren) and make all of the decisions about the welfare of the child(ren), while the other parent will usually enjoy visitation with the child(ren) and be entitled to information about the child(ren). It is also possible for parents to share day to day care and control of their child(ren) or at least have equal input into the decisions about their child(ren)’s welfare.
Property – The value of family property must be divided. Under the Family Law Act, married spouses must respectively value all of their own property accumulated between the date of marriage and the date of separation. Generally speaking, the difference is then split equally. If spouses are not married, they still have rights and/or responsibilities under the common law.
Support – After separation, spouses must each pay a mortgage or rent, buy groceries etc. separately. Needs have changed. It’s those needs measured against one’s ability to pay that will determine the amount of child support and/or spousal support to be paid.
The Process – The resolution process is one of the first crucial choices to make and it can adopt many forms – mediation, negotiation or even litigation. Can spouses co-operate? Communicate? Understand the other’s perspective? Mediation or negotiation with the assistance of a lawyer conversant in family law might then be appropriate. What if a spouse won’t listen? What if there is violence? Significant power imbalance? What if one wants to “nail that rotten … .” It may be necessary to ask a judge.
Whatever the process, the terms of resolution should be contained in a domestic contract or a court order only after both spouses have had independent legal advice. You need a contract for both personal and legal reasons. You need to be certain of the terms of your resolution and you also need to establish some “finality” to your relationship.
Ask yourself, are you ready? Consider your issues with your needs and wishes in mind. List them. Remember you don’t have to accept a proposed resolution. Gather relevant documentation such as your marriage licence, tax returns, pay stubs, bank statements and pension, real estate and/or life insurance documents.