Divorce: Two lawyers on what people should consider and the mistakes people make

This article was originally published June 18, 2018.

Divorce rates in Canada still hover at about 40 per cent, but of course, the fact that divorce may be common does not make it any less overwhelming. If you're about to take that plunge into separation and the dissolution of your union, what do you need to know? What do people ask most of their divorce attorney? And what should they really be asking?

We asked Harold Niman, of Niman, Gelgoot and Associates, LLP, and Laura Paris, associate at Shulman Law Firm, all of the above questions. Here are their answers.

What is the most important thing to consider when looking for a divorce?  

"Separation is more important than divorce. Most people don't fight about a divorce. [They fight] about money and kids. Also, [keep in mind that] separation captures common law relationships, too." - Harold Niman

What is the question that you get asked the most when someone comes in looking to get divorced? 

"How much will this cost and how long will it take?" - HN

"The number one question I find is how much it is going to cost. People also want to know what they are entitled to, a question which cannot be answered without also explaining what one's obligations are as well." - Laura Paris

What advice do you give them when they ask this question? 

"All it takes is one of the four involved to be unreasonable, parties and lawyers, [for things to cost more and for it to take longer in the court system]. So, stop using social media. [Wait] 24 hours before sending an angry text or email to your spouse. And then another 24 hours." - HN

"With respect to cost, it is the most difficult question to answer as the cost is not only dependent on the amount and complexity of issues which need to be dealt with, but also on the conduct of both parties. 

With respect to entitlements/obligations, the advice largely depends on each individual's particular circumstance. For example, if someone has indicated that they or their spouse have significant holdings, I would advise that the legislation is clear in that generally speaking property is divided 50/50, irrespective of ownership (with some exceptions); or if someone informs me that they worked throughout the relationship while their spouse stayed home, I would advise that they may be vulnerable to a claim for spousal support from their spouse." - LP 

Are there any questions that you wished more people would ask? Anything important that you feel people miss? 

"I believe that most people coming in for consultations are so overwhelmed by the emotional turmoil related to a separation, that it is difficult for them to organize their thoughts, and ask the right questions. Most people will spend time talking about the reasons the relationship broke down, and everything they did right, and their spouse did wrong. The reality is that these factors have limited value in most circumstances given the "no fault" divorce we have in Canada. While again, questions will differ based on each individual's specific circumstance, it is important not only to ask what your rights/obligations are, but also how you go about enforcing those rights and/or disputing those obligations." - LP 

What is the one thing that you wished people knew about getting a divorce? 

"Life goes on. The battle is very rarely worth the price." - HN

"It is only as difficult as you and your ex spouse choose to make it. Most family lawyers, particularly senior lawyers, can more or less predict how a file will ultimately unfold. Unfortunately, clients often do not want to accept the advice given by their lawyer if it does not align with what they believe to be right and just, and they end up spending significant time, money, and energy before they realize their lawyers were correct. As counsel, we have the unique opportunity to view the relationship from a neutral and unemotional perspective and assess the issues in accordance with our knowledge of the law, and advise our clients accordingly. Our ability to separate from the emotional aspect is a huge asset for clients, should they choose to take advantage of it. While there is not always a perfect science to dealing with family law issues, as every family is unique, we are hired to provide you with legal advice and help guide your choices to make the process as smooth and as seamless as possible. I think it's important that clients learn to use lawyers as a helpful resource, as opposed to a hired gun." - LP