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What are 5 common myths about divorce?
Myth #1: To be separated, one of the spouses has to be living outside of the family home.
False. How odd! How can that be? I thought being separated meant living apart? For most folks it does, but there is no exact defining moment that applies to all separated couples. It really means on or about the time when two hearts grew very much less fond of one another. These two non-reconciled hearts can be cohabitating in the same home, although not usually sleeping in the same bed.
So what does that mean for the ‘Date of Separation’? Some discussion and agreement is required. Remember when you moved downstairs to the couch? Nothing was said really - you just stopped sleeping in our bed and neither of us minded and sort of understood what it meant. When was that, 3 months ago, 4 months? Your family lawyer or mediator will ask you for your date of separation and you can pick any one day over the last 3 or 4 months.
Myth #2: If one party commits adultery, he/she loses everything.
No, sorry, that’s false too. Canada has a no-fault divorce law. It takes only one to tango, and your spouse doesn’t even have to have been unfaithful for you to seek a divorce. The division of assets and liabilities is not affected by infidelity. Adultery can be relevant if one spouse is seeking a divorce prior to waiting a year after separation, but that’s a different issue.
Myth #3: All marital assets and liabilities MUST be split 50/50.
Wrong again. It’s not the individual assets and liabilities that are split, but the couple’s net worth. The formula is to subtract the total of all family liabilities from the total of all family assets to arrive at the net worth of the family. That’s the number that needs to be split 50/50. Horse-trading of individual assets and liabilities can accomplish much to equal the split, but usually some sort of payment from one to the other is needed. That payment is called the ‘equalization payment’. Just how that is funded can be yet another process; perhaps one remortgages the house, or sells some post-division assets. There is nothing stopping couples from agreeing to a payout period, much like a loan, but most opt for a ‘get it done’ approach and have it paid right away.
Myth #4: For purposes of division, we must value our assets and liabilities as of the ‘Date of Separation’.
Nope, these can be two different dates. It is very common to value assets and liabilities as of the date of separation, but it is not a requirement. Choosing the ‘Date of Valuation or Calculation’ is once again up to you. For example, you might decide that you separated on June 15th, but decide that valuation should be as of December 31st, six months later. Again, most do not have such a long period between separation and valuation, but in some instances there are good reasons to do so. Perhaps there is a business entity of which the value is better determined at year end, or perhaps documentation of other significant values are not readily available until year end. (A little side note here: For income tax filing, be sure to show you are separated as of June 15. The tax office takes a dim view of false statements.) Most of the time, however, couples use the date of separation for the date of calculation. It’s simple and obvious, often a good default way to go in life. Plus you can be granted a divorce a year from your date of separation.
Myth #5: Spousal support must always be paid.
There’s that ’must’ modal again, and you’re probably getting wise to my ploy here: There are few ‘musts’ in divorce. The only mandated support payment is child support which is dictated by Federal Child Support Tables based on incomes, number of children, province of residency, and who they live with at least 40% of the time. Spousal support is not mandatory, but instead is usually part of a negotiation and generally follows what are called The Spousal Support Advisory Guidelines. Many family lawyers and mediators tend to use these guidelines and we are told most judges like to see them followed. Spousal support is tax-sensitive – it is taxable in the hands of the recipient and is a deduction for the payor. Child support payments, on the other hand, are neither taxable nor deductible.
The future is often better than expected
These 5 myths might be the most commonly held misconceptions, but there are many others. In a later instalment, we might elaborate on some others as we wander through what for most is a confusing process. But try to remember - divorce is primarily about finances and the children. Under ‘money’ falls division of marital property (and debts), and support payments, both child and spousal.
Are there really 50 ways to leave your lover?
By Paul Sweatman
If in 1975 there were 50 ways to leave your lover, then the number one way was suing for divorce; is this still the answer? Paul Simon’s girlfriend told him there must be 50 ways to leave your lover, but she actually mentioned only five...
Slipping out the back – that was for a fellow named Jack.
Making a new plan – good advice for Stan.
Avoiding being coy – this gem for Roy.
Use of a bus – apparently best for Gus.
And for Lee, she advises little discussion and simply dropping off the key. All these are strategies to be sure and all are intended to ‘get yourself free’. In truth, she offered a sixth way, cryptically. He was to sleep on it, remember?
‘Sleeping on it’ is what most couples do, for years before choosing to slip out the back. All surely will drop off the key eventually. Paul Simon wrote that song in 1975, and indeed some of these casual approaches would have worked, at least for couples co-habitating.
The Canada Divorce Act was created in 1968. It standardized the law of divorce across Canada and introduced the concept of no-fault marriage breakdown. Yes, you can still catch Gus on the bus with his new lover but you need not find fault to get yourself free. Just wait a year and you qualify. So Jack, Stan, Roy, Gus, and Lee, if married, could indeed go ahead and find freedom in their chosen manner, although it wasn’t ever as easy as simply leaving. Instead, they would follow what’s commonly referred to as Traditional or Adversarial Divorce. Jack hires a lawyer, Jill hires her own and up the hill they climb, sometimes for years. It is a so-called ‘position-based’ approach whereby you define and then protect your position if possible. Sometimes one spouse takes a nearly indefensible position requiring a frontal legal attack by the other side.
Simon’s friends were probably not married. They were probably cohabitating, and if they lived together for three years, by 2001 they were considered common-law partners. In Manitoba, Nova Scotia, and BC, after June 30, 2004, they enjoyed the same right to property as their married friends. But common-law relationships were and still are, much the minority.
If in 1975 there were 50 ways to leave your lover, then the number one way was suing for divorce. That is still the case. But the vast majority of divorces are settled before spending the thousands of dollars a day required when in court. Contested divorces, court or no court, can cost $20,000 each in legal fees. Most of us have heard of friends spending much more on their divorce, and that after years in the process: Statement of Claim, Statement of Defense, Affidavits, Motions, Case Conferences in front of a Judge, Briefs for Case Conferences, more affidavits, and finally, draft separation agreements followed by more drafts. But eventually, it’s done.
As a survivor, you will give your lawyer heartfelt thanks, and you’ll mean it. Yes, you’ll have less money in your pocket but you’ll feel that s/he did a great job. You’ll feel much less charitable towards your ex and his/her lawyer, however. The ‘us versus them’ mentality takes over. It need not be this way - life is too short to waste on such negative feelings. While ending a marriage or common law relationship must meet certain legal standards, the participants need not feel as if they are under siege. What other ways are there to ‘get yourself free’? What might they look like?
An oddity in the ways to leave your lover is to not leave. About 6% of separated spouses remain living together. Leaving your lover without actually leaving – is that really being separated? The short answer is yes. Being separated does not necessarily mean living apart, and the date of separation need not be when one of you moves out. It can be the date when you both agree that the heart of the marriage stopped beating. More on that later. For now, what about those other, less devastating, ways to say good-bye? They generally fall under the ‘play nice’ rule, and have been gaining in the area of lovers finding their new normal. Next time: how to play nice…stay tuned.
Author: Paul from DignifiedDivorceVancouver.com
778-986-1655 Free first meeting.
Your mother was right: Play nice
In the last post, we asked “Are there really 50 ways to leave your lover?” The short answer is no. Paul Simon mentioned only a handful and truth be known, there are only a few. We explored the ‘Traditional Way’ which, when all parties work together, results in a good legal separation agreement in an acceptable time and at a reasonable cost. But that’s if everyone works together – all 4 of you: you and your spouse and your representatives. The position-based, adversarial nature of the traditional divorce, when all 4 are not moving in the same direction, can be expensive, bruising, stressful, and time-consuming, not to mention the potential damage it can do to your kids. The participants take a position and fight to protect it.
Today, we’ll explore the other ways - ways more focused on mutual interests, ways we have grouped under the ‘Play Nice’ banner.
Financial and emotional capital
The deep insult so many divorcing people feel is exceedingly hard to ignore. Both spouses can feel betrayed, harmed, and can, with great clarity and a mountain of evidence, show proof of the injury the ‘other’ has inflicted on their well-being. Injury begets anger, anger begets revenge, and revenge? Well, revenge is expensive. Financial and emotional capital can be spent for years to right perceived wrongs. And you will see yourself as a victim. Victimhood is righteous and, in its own odd way, comforting. But it can bankrupt the rich and healthy.
Play nice you say? Not me! On the contrary, playing mean has a much more attractive aroma. Surely revenge will taste sweeter. And indeed it may, but only for a while. It soon turns bitter and sour. Your once pleasing visage becomes that of a baby with a lemon slice - pursed lips, a look of growing reflective shock.
The main issues in divorce are money and kids. Under ‘money’ are family assets and liabilities as well as support payments – spousal and/or child support. Under ‘kids’ lies the greatest treasure you have and to get to a resolution on your children, you need to be counter-intuitive and pay attention to the money first. As we mentioned in a previous article, figuring out the finances first will free you to take that deep breath to discuss with your spouse how to co-parent the kids. The ‘but’ you will have is: But how do I get through the money issues without a lemon-face? He/she will want the RRSPs, the boat, the BBQ and the [fill in the blank] and I’ll be left with nothing, and I’ll be damned if I am going to give in! How to get to “playing nice?”
Playing nice means…
Don’t fight in front of your kids.
Don’t fight at all.
Don’t’ write angry emails or texts.
Don’t leave angry voice messages.
Don’t speak poorly of your spouse (especially in front of your children).
Don’t take that easy cheap shot. Learn to bite your tongue.
If you have another relationship, don’t flaunt it in front of your spouse or kids.
If you don’t have another relationship, wait until after you have your agreement before starting one.
Get help from therapists, psychologists, psychiatrists, divorce resource books.
Call a family lawyer versed in mediation and negotiation.
Call a family lawyer practicing Collaborative Law.
Call a service like ours, Dignified Divorce.
You don’t actually have to be nice. That might be more than you can stomach. In that case, just pretend to be nice. The truth can be over-rated anyway, and hypocrisy can be useful when employed for a greater good (please do not quote me on this). The greater good is your kids and if you are honest with yourself, you’ll have to admit that the last few years together were a study in pretending.
So, the stage is set for progress: you promise you’ll be disciplined enough to at least pretend to play nice; you’ll call a pro who knows how to work with couples who would rather be in Philadelphia; and you are willing to take deep breaths, bite your tongue, and listen carefully for a few months.
Our preferred approach is to focus not on position-based thinking, but instead on interest-based thinking. We negotiate for a flat fee, usually in the $5,000 -$8,000 range, which when spit between the couple means $2,500 - $4,000 each for resolution of all issues prior to getting a family lawyer to finalize the plan as a legal separation agreement. As far as we know, it is the least expensive, fastest, and least stressful approach to resolving issues. But there are conditions… You need to be able to be in the same room with your spouse at least twice in the process, and you’ll still need a lawyer at the end of it. Our goal is to have you about 90% through the process by the time you need to retain the services of that lawyer.
Another ‘play nice’ approach is collaborative divorce. Collaborative divorce started in California in the 1990s and has quite properly spread throughout Canada and the US. It is a practical and thorough approach involving lawyers, coaches/therapists, and a financial expert. As with the negotiated, resolution approach, collaborative divorce commits the parties to being respectful and cooperative.
Some of you simply are nice and can use the ‘do-it-yourself’ packages out there. I have no opinion on these. Apparently they work fine for some folks, but as my dad, a lawyer, used to say, “Anyone who hires themself as their lawyer has a fool for a client”, so be careful. Overall, it boils down to the age-old advice of moms everywhere: “Be nice, or at least play nice.”
In the next installment, we will return to some of the oddities and misconceptions about divorce. In future installments, we’ll discuss the effects divorcing staff can have on your business, and eventually, we’ll discuss its effect on your kids.
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