Anecdotally, lawyers perceive January as being a very busy month for people seeking a divorce.  It has been historically known as “Divorce Month”.  I’m not aware of actual statistics that bear this out, but it does appear that many families try to keep it together until after the holidays. Certainly, the pandemic has exposed cracks in relationships that may have accelerated the desire to change directions in relationships, including contemplating separation.  Marriage counselling may help, but if it doesn’t, you may find yourself in the unexpected place of wanting to separate.

​If people are considering separating, they should carefully explore the options they have to transition their family in a way that minimizes further damage to the relationships.
As a family law lawyer who has assisted many clients over the years, I have learned a few things that may be helpful to people who are contemplating separation:

1. YOU DON’T HAVE TO GO TO COURT.  I am always amazed at how many people assume that filing for a divorce is the way to “legalize” a separation.  Especially during the pandemic, court matters have taken even more time to resolve. The vast majority of couples separate by negotiating the terms of their separation outside of court. Proceeding in court is usually the most expensive way (both financially and emotionally) to resolve family disputes as it is an adversarial process that pits parents (spouses) against each other, exacerbates problems in the family, and delegates the decisions about your family to a third party. Regrettably, people rarely receive the vindication or validation of their concerns they are seeking from an impartial judge, so at the eleventh hour, (or when they run out of money to continue the dispute,) they settle for something less then they were originally seeking.  Separating couples should look for a process that keeps them out of the court system.  
2. PRESERVE RELATIONSHIPS.  This may sound counter-intuitive if your goal is to separate from someone, but we are talking about families here.  If there are children, there will be an ongoing parenting relationship.  Even if there are no children, there are still mutual friends, in-laws, neighbours and other people who are supports to both spouses and their children.  Loss of these relationships (or the risk of loss) adds to the grieving the individual experiences, and preserving (not alienating) family members and friends, is very important 
3. CONFLICT COSTS.  This is a mantra I have used with clients as well as with professionals I have trained in peaceful dispute resolution processes.  Separation (and divorce) is the result of irreconcilable differences in a couple’s approach to finances, parenting, life goals, priorities, etc. These differences may result in conflict that manifests itself in many ways. The goal is (or should be) to de-escalate conflict, understand the nature of the conflict and consider what will be better in the future when the conflict is resolved.  I often tell clients that separating is a bit like the MasterCard ads: you can put a price on the car, the house, the bank account, etc. but happy well-adjusted children? Peace and future happiness? PRICELESS.  When considering acceptable options, a well-informed compromise can save you a lot in the end.
4. CHILDREN SEE AND HEAR EVERYTHING.  The only work I do in court anymore is representing children of parents in conflict.  It is a privilege to learn about the child’s experience of their parent’s divorce.  Please, please, get counselling and advice before talking to your children about your separation.  Telling children together in a very thoughtful, planned and open approach is usually best. Please protect your children from conflict.  Even if your words are not negative, your tone and body language say a lot to children, so be careful.
5. UNDERSTAND WHAT YOU NEED.  Separation impacts many areas of your life, so there are legal, financial, and emotional consequences to the decision to separate.  Therefore, drawing on the expertise of professionals in these different disciplines may be key to the “success” of your divorce. In some cases, a qualified family mediator can help the couple canvas all issues, but the mediator is neutral between the spouses and cannot give advice, legal or otherwise, (even if the mediator is also a lawyer). Only a collaborative process gives each spouse their own highly trained collaborative lawyer/advocate who works in a very intentional way along with their collaboratively trained family professionals (psychologists, therapists, etc.) and collaboratively trained financial professionals (CBV’s, Certified Divorce Financial Analysts, etc.) who as a team, work together with the couple to assist them in resolving issues that are child focused, and future looking.

​Nothing is this article is intended to be legal advice.  You should speak to a family lawyer for advice.

Separation is STRESSFUL
For most people, the experience of separation and divorce is one of life’s most stressful events, second only to the death of a spouse1. Understanding that your stress level is high, and your partner’s stress level is high can give you insight as to why you both may be saying or doing things that under normal circumstances, you would not do or say.  People often act in ways that may seem out of character, which starts a cycle of doubt about the other person and the basis for your relationship.
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​This is not the person I FELL IN LOVE WITH
Often, people begin the process of separation with a desire to resolve issues peacefully.  They want to be respectful.  Sometimes, they have preconceived notions of what their separation will look like.  Surely, they will be one of the couples that lovingly share the parenting of their children, and have a friendly relationship after their divorce, just like in the movies.  So, what went wrong?  Why is the other person being so unreasonable? Who is this person?  Why is this not going the way I planned?

​There is a basic premise in family law that many people do not understand: Married couples share matrimonial properly, equally. I will break this down:
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MARRIED COUPLES
If a couple legally marries, there is a presumption in law that they intend to share. The corollary to that is that if a couple does not legal ly marry. there is no automatic presumption that the couple intended to share property, unless property is purchased jointly. (There are exceptions to this presumption in certain cases involving a joint family venture or trust claims.)

​MATRIMONIAL PROPERTY
This refers to assets or property acquired during the marital period. Property owned prior to marriage is excluded and property acquired after the date of separation (by choice or by death) is also excluded. Therefore, only the acquisition of assets which occurred during the marriage is shared. Assets that you owned prior to marriage is excluded from the sharing.

A marriage contract is useful tool if you have assets or interests you wish to protect before getting married. In fact, couples who discuss financial matters in a clear and honest way with each other prior to marriage have a mature and realistic approach to their relationship. It doesn’t have to be a negative thing. For example, if one partner has interests in family business or has been working with a partner who wants to ensure that the partner’s spouse does not acquire interest in the business, a marriage contract is a practical way to do that. And in the end, you want to know that the time and money spent on the negotiation of the agreement will pay off with a tight and enforceable contract in the event of separation. Cohabitation agreements and marriage contracts, (colloquially known as “prenups”) are one of the most frequently challenged documents in family law.

The most important thing to ensure that an agreement is valid and enforceable is to be certain that each person has had independent legal advice and fully understands the nature and consequences of every term in the agreement. I cannot count the number of times a client has come to my office after separation, with a copy of the marriage contract, telling me that he or she didn’t have independent legal advice and didn’t fully understand the implications of the agreement or that the contract was presented to him or her only days before the wedding. There is enormous pressure on the person being asked to sign an agreement, as though his or her loyalty or commitment to the marriage is being questioned if they refused to sign. It takes little imagination to see how this could result in a strain on the relationship in the very early stages, when both partners are looking forward to their future together.

It seems to me the most appropriate way to deal with a marriage or cohabitation agreement is to use a collaborative approach. Both partners meet with their counsel at a four way meeting to have a frank discussion about the reasons for the agreement and the potential pitfalls of signing the agreement so that the couple enters into the agreement fully committed to its terms and both can rely on it for making future decisions. It takes time to get it right. I will not act for a client on a marriage contract or cohabitation agreement without a four way meeting, and allowing the time for the parties to reflect on the draft before signing.

Do’s and don’ts for the negotiation of a marriage contract:

DO:

• Allow two to three months prior to the wedding to negotiate and finalize the agreement.
• Ensure both of you have legal counsel (preferably collaboratively trained lawyers) who will help
  both partners develop options and scenarios that meet the couple’s unique needs.
• Engage the assistance of a financial neutral if there are business interests or complex finances
  that the other party needs assistance in understanding.
• Be realistic about future needs and think about the “why” of each term in the contract.
  
  

DON’T:

• Rush into a contract that you don’t fully understand.
• Sign without independent legal advice that is clear and thorough review of the terms.
• Sign on the eve of the wedding. A marriage contract can be entered into any time before or during the marriage.

Nothing is this article is intended to be legal advice.  You should speak to a family lawyer for advice.

​There is nothing like a celebrity breakup to get people talking about certain issues around separation and divorce. A few years ago it was Gwyneth Paltrow and Chris Martin talking about “conscientious uncoupling”. That sounds like doublespeak for what those of us who practice family law call a “collaborative family law” approach to separation and divorce. I was listening to CBC and there was talk about Johnny Depp’s divorce from Amber Heard. Apparently, an issue in their divorce was “who gets to keep the two dogs?” Yorkshire Terriers – Pistol and Boo. Without getting involved or being “judgy” about how these pets were named, it appears that in the final settlement, Heard got to keep the dogs.

​Custody disputes over pets are not uncommon. While typically, in Canadian law, pets are property. The reality is that pets form an integral part of the family, and often both parties have a close bond with the pet. When children are involved, care and control of the pet is often determined by the residency plan of the children. Sometimes, the pet moves with the children.