Getting through divorce with grace, according to a family lawyer
Common questions answered, from how long it will take, to how to speed up the process
Marriage is not always "till death do us part." StatCAN shows 43.1 per cent of marriages are expected to end in divorce before a couple reaches their 50th anniversary. Associate family lawyer at Shulman Law Firm, Diana Isaac, stopped by The Goods to answer the most common questions she's asked when a couple has decided to call it quits.
There's so much information available online but where do you start if you want a divorce?
Diana Isaac: First, you need to have a candid discussion about how you want to deal with the legal issues, property division, custody etc. But that can be easier said than done.
Should you let your spouse know that you're about to file for divorce?
DI: I think it depends on the circumstances. I've had some clients ask to first discuss with their spouse before I send out the introductory letter saying that I'm going to represent them. If they find out from a letter, they might be upset, or they might have trouble believing it. If you are comfortable telling your spouse directly, it could help open a path to an amicable resolution in the future.
My spouse cheated on me, why do I have pay spousal support to them?
DI: This is a hard discussion to have with a client. Some clients cannot reconcile the moral aspect of infidelity with how we determine entitlement for spousal support. The factors do not consider blameworthy conduct. Instead, we have to figure out how to provide the spouse with economic respite as a result of the breakdown. These are very different factors that do not contemplate this type of wrongdoing morally. Instead, the law considers spousal support entitlement based on factors such as their contribution to the relationship, the economic consequences of the relationship for the spouse, and a need for child support.
Can you add a clause about infidelity in your prenup so you can avoid paying support if someone strays?
DI: You can, but it's not enforceable. It's important that a lawyer speaks to their client and asks what their intentions are for the marriage contract. If the intention is "I don't want to pay spousal support" or "I want to restrict the amount of spousal support I'm going to be paying" then you should clearly and succinctly put that into an agreement without these contingencies or conditions. This helps keep it simple. Infidelity has to be proven, and while that's made easier in the age of social media, it's better to avoid this type of clause in the long run.
Do I need to divide my pension when I get divorced?
DI: Yes, it is a part of property division which is referred to as equalization of net family properties. The philosophy behind this technical term is that what you've accrued during the marriage, including your pension, is generally subject to division when there is a separation. Most people are shocked by this answer.
How long will it take to resolve my divorce?
DI: I always explain to clients that this depends on the parties. The more acrimonious the matter, the longer the dispute. It's going to take a while if you're fighting over who gets a cheap end table. Of course, resolving a matter outside of court is faster since you have control over the process during private negotiations. This is in contrast to court proceedings, which can slow down the divorce process because it depends on the court's availability. This could easily take months to open up, months you could spend focusing on other important aspects of your life.
Are there ways to speed up the divorce?
DI: There are a few ways to try and get what I call "a happy divorce." Try not to have an emotional divorce and avoid mudslinging. Put your differences aside as much as you can during the proceedings, but I really appreciate how stressful it can be. I think it's important that parties have their financial disclosure organized. This is because you have to provide full disclosure in order to have settlement. Also people have a tendency to involve third parties like their family or friends, and that can really complicate matters. I suggest that you remain child focused, and try to be as respectful as you can to each other in this difficult time. Divorce is hard enough, you don't need more issues to deal with that will only make it worse.