What to do if you’ve tolerated your spouse over the holidays and now you are ready to split

As we approach the New Year, many couples are preparing for a fresh start on a path to legal separation. Lawyer Erin Lepine specializes in family law at the Nelligan Law firm in Ottawa.

Lepine said even though it’s not a quick decision, couples often wait until the holidays are over to move forward with separation, “Particularly when there are children involved, people on the brink of separation want to get through the holidays because they don’t want to disrupt what is supposed to be a happy time for the kids.”

What are the options when considering divorce?

Lepine educates her clients on the various resolution methods available. They could include simple negotiations between lawyers, bringing in a mediator to help bridge the gap, or using a privately retained arbitrator who will streamline the process. Lepine said, “It’s important for people to understand that when there is a separation, it doesn’t have to result in courtroom battle. A contentious courtroom battle should always be the last resort.”

Even with an amicable separation, legalities must be considered. The inclusion of lawyers doesn’t mean it’s a fight, it simply means everyone is protected.

Married couples and common-law couples are not equal

The division of assets and debt is one of the biggest differences between partners who are married and those who live common law. Married spouses have protections under the Family Law Act which provides for the equal division of family property. It considers asset growth from the date of the marriage to the date of separation, which can be a complex process.

Lepine said, “If the parties are not married, it’s even more complex because there isn’t an automatic share of what has been acquired between the parties. The starting point is, what’s mine is mine, what’s yours is yours, if it’s joint, we’ll figure it out.” A process called equitable claims can be made to balance out areas of injustice.

If people don’t know their assets and debts, then there is a lengthy financial disclosure process to go through. Lepine said, “We always make sure we have documentation backing it all up because it’s amazing how much people don’t understand about their own assets or debts.” They then build a plan, set expectations, and finalize it in a way that’s fair for everyone, which includes considering the tax consequences of assets that might be transferred or sold.

Is a divorce costly?

Lepine said the cost of a divorce depends on the circumstances. Some cases are straightforward, while others involving parenting, support payments and income are more complex and costly.

How are parenting issues decided?

A parenting schedule that works for one family may not work for another, “The most important question is, what is in the best interest of the children. That’s the key test that any court, lawyer or mediator is going to determine.” Another consideration is maximizing the time children get with each parent, which depending on a parent’s work schedule, or a child’s needs does not necessarily mean equal time.

Lepine said, “It also depends on how well the parents get along. If parents are sharing time they need to communicate well, if not the likelihood of equal time diminishes.”

The first steps toward separation

Financial matters are important, so gather your documents, including tax returns, pay stubs, bank accounts, credit cards and mortgage papers. Produce evidence that shows the true financial picture at the time of separation and the financial picture at the time of marriage.

When gathering evidence related to parenting matters, Lepine advised, “Think twice before you hit send on a text message or email, because those words could get attached to an affidavit for court. And you might regret what you wrote out of anger.”

Integrity is important

Sometimes clients who have a new dispute with their partner want to change the parenting agreement. Lepine understands they’re

upset but we’re going to be honest with them. “We will not fight it simply because they want us to fight it. It’s not uncommon for us to say, ‘if this is the approach you want to take and we’re advising against it, you’re welcome to talk to someone else. If we don’t think it’s worth their money to fight an issue, we don’t want to take their money, because it’s not fair.”

The lawyers at Nelligan Law will explore all avenues and possibly bring in other professionals, such as a mediator who will cost less than a lawyer. The lawyers will stay involved in the background. “Wherever we can save clients money, we try to do that.”

The lawyers are meeting clients at one of the lowest points in their lives and they are there to listen and help. It’s important to gain their clients’ trust because when their clients are as open as possible is when they can offer them the best advice.

If you would like to contact Nelligan Law, please call (613) 238-8080 or email: info@nelliganlaw.ca