DIVORCE FAQS

This page contains a list of frequently asked questions about Family Law and Collaborative Family Law.

Click on any of the questions listed below, and you will jump to the information given.

1. "My husband and I own two large properties. Should I take one of the properties in the divorce settlement?"
2. "What happens to our debts when we divorce?"
3. "My spouse has a substantial pension. Will I get a share of it in the divorce agreement?"
4. "My wife wants to move the kids from Toronto to Vancouver. Can I stop her?"
5. "Who will pay for our kids' private school when we divorce? With the child and spousal support, I don't know how I'll afford the tuition."
6. "Who shouldn't use mediation?"

Family Law

1. How can I make the divorce process move faster?
2. What traits should I look for when choosing a divorce lawyer?
3. How can I lower the overall costs of my divorce?
4. What if I don't agree with my lawyer's bill? Can I have it lowered?
5. My spouse and I were considering having one lawyer represent both of us to save time and money. Is this a good idea?
6. Do I have to tell my lawyer everything - even details I consider private?
7. What if I want to leave the marital home? Can I do so without hurting my divorce case?
8. How does the court decide custody and visitation? What can I do to improve my chances of getting custody?
9. How is "collaborative law" different from mediation or traditional settlements?
10. I have a question about my divorce case, but my lawyer's out of town. Can I ask my spouse's lawyer?
11. In common law, are you entitled to the same as if you were married?
12. How can I increase my chances of getting full custody of my boys?
13. How can I keep my legal costs down during my divorce?

Collaborative Family Law

1. Why can’t you go to court if I need to? Why should I retain you as a CFL lawyer when I can retain a lawyer to do the whole job?
2. I’m interested in CFL, but my spouse and I aren’t talking and I’m worried he won’t listen to me. Is CFL for us?
3. How do the costs of CFL compare with mediation or court?
4. My lawyer says he settles most of his cases anyways. How is collaborative law different from settling a traditional case?
5. How do I know if CFL is for me?
6. How do I know my spouse will be honest and won’t hide information?
7. What if we settle everything but one issue in CFL – do we have to lose our lawyers to go to court?
8. Which is more appropriate for us – mediation or CFL?

The amount of time the divorce process takes depends mainly on how complicated your case is. Simple divorce cases can take a few months or even less, but a divorce with complex financial, property, or custody issues usually takes far longer. Usually, your divorce will be final shortly after you and your spouse reach an agreement - or after a judge makes the decisions for you.

One way to makes things go more quickly is to cooperate with your spouse, in order to avoid the wasteful conflicts that lead to lengthy court battles. If you and your spouse (and your respective lawyers) can create an agreement that works for both of you, you will save a significant amount of time and money. However, keep in mind that this might require both you and your spouse to make compromises on some issues. Ask yourself whether it's really worth the time and money to take your spouse to court over certain issues between you. If you're determined to "win" against your spouse in every aspect of your divorce, then get ready for a long, costly, drawn-out fight in court. But the more you're willing to work constructively with your spouse, the faster and easier your divorce will be.

Whether you're litigating or settling, you can also help your divorce along by preparation and by cooperating with your lawyer. You can avoid unnecessary delays by providing documents and information that your lawyer needs right away and responding immediately to his or her requests. Also make sure that your lawyer prepares you well: get the legal advice you need right at the outset, to prevent you from acting in ways that might result in legal delays or costs. If you have time, it's also a good idea to educate yourself on divorce law in your state. The better informed both you and your lawyer are, the better prepared you both will be - and the smoother your divorce case will go.

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Choosing your lawyer is probably the most important decision you will make in your divorce process. So make sure you find somebody who will smooth the road ahead, not make it more rough than it already is. Interview several lawyers - at least three - before you make a final decision - but at the same time, don't be afraid to listen to your gut feelings.

If possible, get a divorce lawyer with lots of experience in both litigation and negotiation. He or she will be able to anticipate pitfalls that may come up in your case and avoid them. You also want a lawyer who will be completely honest with you about your case. A lawyer who tries to sell you on how much he can win for you will only set you up for disappointment, but one who lets you know the strengths and weaknesses of your case up-front will be far more trustworthy. You also should make sure that your lawyer is accessible: you should be able to reach him or her in an emergency, and he or she must answer phone calls and e-mails. Communication is an important factor: your lawyer must be willing and able to provide necessary information and answer all your questions, as well as inform you of your legal rights - and in turn, you should feel comfortable enough with him or her to disclose all important information about your case.

Also make sure to ask prospective lawyers about their fees, their estimation of the total cost and time spent on your case, what percentage of their cases go to trial, and whether they practice family law exclusively. Ask if they've handled cases like yours before; if so, it's an advantage. Most importantly, the lawyer must understand your needs, your best interests, what you hope to get out of your divorce - and what you can realistically expect.
Keep in mind that you're the one who's employing the lawyer, not the other way around. You're the boss: it's your final decision who will work for you, so choose carefully.

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The overall costs of your divorce depend mostly on how complicated and/or adversarial your particular case is. A simple divorce with mutual agreement and few or no property/custody issues will usually be quick and inexpensive. However, if your divorce is more complex and takes a long time to resolve, you are certain to pay more in legal fees. Even if this is the case, however, there are ways to lower your costs.

If your spouse is willing to discuss the issues peacefully in a non-combative setting, you may wish to try mediation. This popular alternative to court battles allows the spouses to work out an agreement themselves under the supervision and guidance of a professional mediator (often a lawyer or counselor). Typically, each party employs a lawyer to give legal advice in the process. Although it's not recommended for every case, mediation usually saves both time and money in resolving divorce cases.

Similarly, resolving your divorce in an out-of-court settlement (if possible) will be far less expensive and time-consuming than slugging it out in court for weeks or even months. In a court battle, the fees keep piling up until the end is finally reached, but an agreement will avoid such excess time and financial expenses.
Whether you're mediating, settling, or litigating your divorce, one smart way to save money in the long run is to use your professionals' time more efficiently. Lawyers, accountants, counselors, and other divorce-related professionals typically charge fees by the hour. So you don't want to waste their time and your money on irrelevant or wasteful issues. For example, remember not to use your lawyer as a therapist; he or she may sincerely sympathize with your emotional distress, but that's not what you're paying the lawyer for. You can also save your lawyer a lot of time by providing all relevant information for him or her right away. This way, you don't have to pay the lawyer extra for unnecessary research or waiting. The more prepared your lawyer is, the better (and more economically) he or she can serve you.

Divorce can be very expensive, and it's understandable that you would want to lower the overall costs. However, don't sacrifice your chances of getting an acceptable outcome for the sake of saving money. Don't pick a lawyer solely on the basis of lower fees; make sure that he or she will do a good job as well. Getting the best possible long-term results may be worth spending a little extra.

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You can object to an amount of fees charged by your lawyer if you feel it is too high, or if there are charges that you feel are not warranted or did not expect. However, it is important to discuss the billing problem with your lawyer (or the billing department) right away. In fact, you can save yourself the trouble of dealing with a too-high legal bill by being clear right from the start on the lawyer's billing process.

Upon first hiring your lawyer, make sure he or she explains clearly how you will be billed and what he estimates the full cost will be. Also keep in mind that the total amount will increase with every court appearance and every meeting with the lawyer. This way, you should have a good idea of what to expect at billing time. An official written fee contract helps to make things clear as well. If keeping costs down is an issue, you can help do that yourself by using your lawyer's time economically - such as only meeting with him/her when absolutely needed and providing information and documents right away.

If you receive a bill that's more than you expected, look it over carefully. Keep in mind all the services your lawyer performed for you and when, and compare it to the info on the bill. Look at the specific items you were charged for. If you feel there has been a mistake or a misunderstanding, discuss this with your lawyer face-to-face. (Make sure, of course, that you will not be billed for this meeting.) If there has been a mistake, your lawyer should be willing to reduce the bill immediately. If he or she doesn't, you may challenge the bill in court, but keep in mind this means hiring another lawyer and paying additional legal fees.

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Even if you and your spouse are divorcing amicably, you each need to retain separate counsel because you are still at odds in terms of property distribution and custody. A far better solution for more friendly, mutual divorces is mediation or collaborative law. In the former, both spouses work together under a mediator's supervision to come up with a satisfactory divorce agreement. In the latter, both spouses hire collaborative lawyers who work together to devise a divorce agreement that satisfies both parties. Both of these alternatives usually cost less time and money than adversarial divorces.

The bottom line is that you don't want your lawyer's services to you to be compromised by his duties to your spouse. Your lawyer is working to get the best outcome for you; he or she can't if there is a loyalty conflict.

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Collaborative Family Law

Divorce is a deeply personal affair as well as a legal one, so it's perfectly understandable that you might be reluctant to share certain information about your marriage with your lawyer. However, the better informed your lawyer is about your case, the better able he or she is to represent you. Remember that your lawyer is ethically obliged to keep all correspondence with you confidential. You should feel free to reveal personal, private facts that may have a bearing on your case. This doesn't mean you have to disclose "everything", but certain items of information that may seem unimportant or irrelevant may turn out to be otherwise as the case unfolds.

If your lawyer doesn't have the whole story with regards to your case, there's the danger that the other party could leak out information that could be damaging to your side. If it looks as if you have hidden the information from your lawyer, or as if both of you have hidden it from the court, this could severely damage your credibility. There's also the danger of your lawyer inadvertently making untrue statements that get contradicted by the other party's evidence in court. If your lawyer is armed with the full truth from the start, these pitfalls can be avoided.

It is never a good idea to deliberately misrepresent the facts to your lawyer or the court. If caught lying under oath, you could be charged with perjury - particularly if you were attempting to conceal assets or other information vital to the case. At best, you will diminish your credibility with the judge, make a fool of your lawyer, and provide the other party with an obvious advantage. It's better to reveal all relevant information right from the start and allow your lawyer to work from that.

Again, the more knowledge your lawyer has, the more prepared he or she is to represent you - and to overcome unexpected pitfalls or surprises that may turn up.

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What if I want to leave the marital home? Can I do so without hurting my divorce case?

You are free to leave the marital home if you desire - but bear in mind that this may not be the best idea, depending on the circumstances of your divorce. For example, if you are seeking custody of your children, yet leave them with your spouse in the marital home, this might make you look irresponsible or uncaring for them in the court's eyes. It may also result in significant financial disadvantages for you and/or your spouse. On the other hand, leaving the marital home may be the only option if you are receiving physical or verbal abuse from your spouse.

If you're considering moving out of the marital home on your own, speak to your attorney first. Find out what the consequences will be in your divorce case. There are some situations in which physical separation from the other spouse is recommended, but others in which it might negatively affect your chances of getting the best financial or custody settlement.

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Working from the testimony of both parties (and possibly from that of the children themselves), the court considers the following factors in deciding the final custody and visitation arrangement: how the children and parents interact with each other; how well the parents communicate and cooperate on matters relating to the children; how well each parent addresses the children's needs; the stability and safety of each parent's home environment; the accessibility of education, clothing, food, and recreation from each parent's home; and the children's own preferences, if they are considered old enough to make a proper decision. The court generally considers which parent's environment better serves the best interests of the children.

If you want to get full custody of your children, be sure to remain a responsible, caring, involved parent to them. Always be attentive to their physical, emotional, and social needs, putting them ahead of your own; don't depend overly on your spouse for these things. If you have a work schedule that allows you to take and active role in the overall care of your children - while allowing you to earn enough money to do so - this is an advantage. Involve yourself in all aspects of their lives, including school, medical and dental care, and other activities.

Lastly, recognize that your children will continue to have attachments to the other parent. Show that you will be cooperative with your ex in terms of visitation, and encourage your children to have relationships with him or her (unless, of course, your ex has a history of abuse or violence). As the court will take note of the importance of both parents in the children's lives, so must you.

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Collaborative law is a dispute-resolution alternative in which both parties' lawyers agree to work together toward a settlement without litigation. Invented by Minnesota matrimonial lawyer Stuart Webb, collaborative law also involves a written agreement stating that both lawyers must withdraw from the case if either party chooses to initiate adversarial court proceedings.

Like mediation, collaborative law aims to resolve divorce and other types of disputes through cooperation between both sides - with a much lower financial and time expense. However, one of the primary differences is that the parties themselves negotiate the terms of their own divorce in mediation, under the supervision or guidance of a neutral mediator (often a lawyer or counselor). Each mediating party may hire his or her own lawyer for individual advice. But in collaborative law, each party hires a lawyer that specializes in the collaborative-law alternative, and their lawyers do the negotiating - with their clients' best interests in mind. Whereas mediation may not be appropriate in cases where there's a power imbalance between the parties, or there's any other personal disadvantage for one, collaborative law can eliminate this potential problem through having the lawyers negotiate on behalf of their clients' interests. (Often, a neutral professional such as a financial planner, custody evaluator, or therapeutic "divorce coach" is brought in as well.)

Whereas all matrimonial lawyers can negotiate peaceful settlements in divorce, collaborative law is different in that, again, litigation is completely ruled out as an option. Sometimes, an attempt at a settlement may result in litigation if one of the lawyers and/or parties is unreasonable about their terms or feels that the other party is being unreasonable. In collaborative law, however, both lawyers have agreement as their primary goal, rather than satisfying their respective clients' separate agendas.

Collaborative law works as a four-way negotiation process to reach a win-win solution to divorce, involving the lawyers' problem-solving skills rather than their adversarial instincts. Once an agreement is reached between both parties and their collaborative lawyers, the lawyers officially prepare the agreement, the divorce is settled, and clients hopefully move on with their lives.

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This is never a good idea. The most obvious reason is simply that you and your spouse are on opposing sides of the case. Even if you're having a relatively amicable divorce, you and your spouse still have conflicting interests that need to be settled. So your spouse's lawyer is no position to help you; he or she is required to be loyal only to your spouse. Lawyers have an ethical, professional duty not to speak with opposing lawyer's clients during a case.

If you phone your spouse's lawyer, he or she will most likely respond, "I'm not permitted to speak with you." However, there's the danger that you may inadvertently give the lawyer clues as to your priorities and concerns in the case. The last thing you want is to give the other side any advantage over you.

If your lawyer is out of town but you feel that your question is urgent, leave a message at his or her office. Most lawyers check messages regularly even when away from the office and return calls as soon as possible. If yours doesn't, however, ask another lawyer in the firm or an associate of your lawyer. A clerk or paralegal may also be able to help you, depending on the question. If no one else in the law firm can help you, then your best bet is to contact a lawyer outside the case for a neutral answer or opinion. Many lawyers offer free initial consultations.

Before you try these routes, of course, be sure that your question really is urgent. If it can wait until your lawyer gets back, be patient: your lawyer is still the best person to answer it, as he or she is the most familiar with the details of your case.
If your lawyer is frequently unavailable and unresponsive to your questions and concerns, then it may be time to get a new lawyer. But never ask your spouse's lawyer for advice - at best, it achieves nothing; at worst, you're revealing too much information to the other side and harming your chances for a fair outcome.

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The law makes no distinction between married and unmarried couples for the purposes of child support. The rule is that child support is the right of the child, regardless of whether or not the parents of the child are married.

Both the Divorce Act (Canada) and the Family Law Act (Ontario) provide that married spouses are responsible for each other's spousal support on separation in most circumstances when there is need and an ability to pay. There is no minimum time period for which the spouses must be married in order to give rise to a support obligation. For common-law and same-sex partners, the Family Law Act provides that an individual may be responsible for the support of his or her ex-partner if the partners have a child together or if they have cohabited continuously for a period of not less than three years.

The Family Law Act requires that the value of property accumulated during marriage, with a few exceptions, shall be divided equally between spouses on separation. This is regardless of whether or not there was an equal contribution to the acquisition of property by the spouses. On the other hand, there is no presumption in law that the property of non-married partners should be divided equally on separation. Property division will depend on each partner's financial contribution to the relationship and in whose name the property was purchased.

**This faq was first published in the Ontario Divorce Magazine and are reprinted here with their full permission.

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Generally, courts will award sole custody to the parent who is more closely connected with the day to day care of a child and who is more child-focused. A father who takes an active role in the raising of a child, and who has a work schedule that permits him time to look after the child on a day-to-day basis, has an excellent chance of obtaining sole custody of the child.

In order to increase your chances of getting sole custody of your boys, be sure to be involved in all aspects of their lives -- from school, to medical and dental care, to extracurricular activities. Put the children's needs ahead of your own, and adapt your schedule to theirs, as much as possible.

Finally, be sure to recognize the importance of the boys' mother in their lives, and encourage the boys to have a healthy relationship with her. Courts recognize the importance of both parents in a child's life and will likely not grant custody to a father or mother who prevents a child from having a meaningful relationship with the other parent.

**This faq was first published in the Ontario Divorce Magazine and are reprinted here with their full permission.

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The cost of contested divorce proceedings in court is high. Hourly rates for divorce lawyers range from $175 to $350 per hour. The duration of a typical contested divorce in court may be 6-12 months. Clients are often left with legal bills they cannot afford to pay.

There are alternatives. Court proceedings for a divorce should be used as a last resort, only after efforts to settle by other means are tried and fail. Alternate Dispute Resolution (ADR) is becoming more the norm today. ADR allows parties to resolve their matrimonial disputes themselves without the need to have a judge decide important issues for them and their family. ADR methods include mediating family disputes with a trained mediator and/or lawyer and collaborative family law. Collaborative family lawyers work together with clients to resolve all issues in dispute in an informal, out-of-court setting. Clients who can resolve their family-law disputes through ADR often express more satisfaction with the outcome and the cost than clients involved in contested court proceedings.

If a divorce has to go to court, there are ways to keep the cost down. Family-law clients should provide full financial disclosure so that lengthy and expensive examinations of that client's financial statement are not required. In addition, clients involved in contested proceedings should seriously consider all reasonable offers to settle made by the other side in order to avoid the financial and emotional costs of proceeding to a contested trial.

**This faq was first published in the Ontario Divorce Magazine and are reprinted here with their full permission.

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When litigation is an option, lawyers tend to go to court when they encounter problems. If we take a case that may go to court, we have to spend time preparing to go to court, just in case. A lawyer involved in a litigation case acts differently, follows different procedures and involves his or her client less than in a collaborative case.

When the parties have given up the right to go to court, all of the lawyer’s problem-solving abilities are focused solely on settlement. When court is not an option, the parties and their lawyers stay at the table and keep talking. Generally, they are able to come up with creative settlements that are far better and more customized than a court could create.

Even if the collaborative process doesn’t succeed and you have to go to court, you have had the best of all worlds – a lawyer who specializes in settlement, and, if trial is necessary, a lawyer who specializes in court. It is rare for a lawyer to be as effective as a negotiator and as a trial lawyer.

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When people go through a divorce their minds are very busy dealing with a lot of unknowns. People usually feel very worried and fearful about their future. It’s hard to get the psychological space to think and make good decisions and it can be really difficult to talk with each other. In the collaborative process, you’ll have time to breathe deeply, think, and make the best possible decisions. We’ll be there to support you and to keep the negotiating space safe and clear. There will be no yelling, intimidation or disrespectful behaviour. Your spouse’s lawyer will be discussing appropriate behaviour with him/her as well. Often, once a proper negotiation climate is established and each spouse realizes that the goal is to get both of your needs met, each person can begin to really listen to the other and to move forward successfully.

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CFL is far cheaper than a court proceeding that goes all the way to a trial. Although many are settled before trial, the legal fees for each party in a contested court case are usually around $15,000.00 to $20,000.00. It is also not uncommon for fees to be as high at $50,000.00; I know of cases where they have even been much greater. Some people think that mediation is cheaper than collaborative law because the parties share the cost of the mediator as opposed to each paying for their own collaborative lawyer only. This is often true. However, some people require that their lawyers be quite involved while they go through mediation, providing legal advice and perhaps attending the mediation sessions. If that happens, mediation may even be more expensive than CFL.

Although I cannot predict your costs in a CFL process, as the number of meetings vary from case to case, we generally find that fees range from about $3,000.00 to $8,000.00 for each side, with most people spending about $4,500.00 each for a comprehensive settlement of all the issues. We suggest that you choose mediation or collaborative law based on which process you think is most appropriate for you, rather than because one may be cheaper than the other.

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CFL settlements tend to be negotiated in quite a different way than cases that proceed through the courts. While most family cases do settle before trial, settlement usually occurs only after each party has spent a great deal of money and suffered emotionally from the experience. Settlements are often reached while everyone is under stress to avoid the next court appearance. In an adversarial proceeding, lawyers negotiate settlements based on what they predict will happen in court. From the outset of a CFL case, all of our efforts are geared towards achieving an early settlement. Our goal is to negotiate a settlement that satisfies each party’s needs and interests rather than what a judge might order. You and your spouse, not your lawyers, create the settlement in CFL.

Also, CFL negotiations are generally more respectful and open than what you might see in an adversarial proceeding. Unlike court which is scheduled according to the lawyers’ and the court’s timetable, CFL meetings are scheduled to suit you and your spouse. You will both have time to think and make good decisions. Finally, CFL settlements are customized to suite your particular family, arrived at more quickly and usually with less cost than settlements reached in a traditional negotiation.

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CFL may or may not be the most appropriate process for you. It may be helpful for you to consider certain factors before you make your choice:

• First, CFL will be of interest to you if you and your spouse want to keep control over the decisions made about you and your family, rather than giving authority for decision-making over to a lawyer or judge.
• Second, you should only choose CFL if you and your spouse each accept that the other has legitimate needs and interests that must be addressed as well as your own.
• Third, CFL is probably for you if maintaining civility, dignity, and mutual respect throughout the process is important for you.
• Fourth, if you want to maintain a positive relationship with your spouse after the divorce, CFL is preferable to court.
• Fifth, CFL offers a greater assurance that your children will be sheltered from the emotional damage often caused by a separation of their parents.
• Sixth, if the goal of you and your spouse is to co-parent your children, there is a greater likelihood of obtaining that outcome and developing an effective parenting plan through CFL.
• Seventh, before you commit to CFL, you and your spouse must be willing to exchange all important information.

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There are no guarantees of honesty in any legal process. CFL relies on undertakings by both parties to make voluntary disclosure of all important information. CFL lawyers do not focus on rooting out hidden assets or income. Although you may see any financial documentation you feel is important, if you do not trust in the basic honesty of your spouse, CFL is likely not appropriate for you.

Remember that the cost to find hidden assets is often very high. Regardless of the process you choose, you will need to conduct a cost/benefit analysis and decide whether such a search is worth the expense. A CFL lawyer will withdraw or terminate the process if s/he feels his/her client is refusing to make full disclosure. There is no such requirement in a traditional negotiation.

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If all but one or two issues have been resolved in the CFL process, it is possible to refer those issues to an arbitrator who will make a final and binding decision. If you and your spouse agree upon the facts, the issues that need to be resolved and to arbitration as a dispute resolution process, your lawyers may then be able to continue to represent you and your spouse. The Participation Agreement approved by our CFL association permits arbitration in these circumstances.

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Mediation is appropriate for spouses who can negotiate on their own behalf with the help of a neutral third party who does not provide legal advice. They are willing to consult with their lawyers when needed and to take their mediated agreement to their lawyers for legal advice before it is confirmed. CFL is appropriate for those who want to negotiate for themselves, but want their lawyers with them every step of the way to provide legal advice and negotiation support. CFL may also be suitable where the issues are technical or complex, there is a perceived power imbalance between the parties, where there has been past abuse or where there are strong emotions and low trust.

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