We know that most people want their divorce to go smoothly. At the best of times, we may not make the most appropriate decisions, sometimes due to the lack of information, or being fed inaccurate information. During a divorce, emotions can run high and further impede your decision making ability.
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Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speakers: Family Lawyers - Ken Nathens and Brahm Siegel. Ken Nathens is the founding and managing partner of Nathens, Siegel. He has been practicing family law exclusively since 1994. He has also written extensively on family law issues, including numerous published articles in Divorce Magazine. He offers frequent lectures on family law issues. He can be reached at (416) 222-6980.
Brahm D. Siegel, a partner at Nathens, Siegel, is certified by the Law Society as a Specialist in Family Law. He is a mediator, arbitrator and a collaborative practitioner. He has written extensively in the area of family law and divorce. He is the author of the chapters on divorce, procedure and alternative dispute resolution for the family law Licensing Process at the Law Society where he was an instructor for six years. He can be reached at (416) 222-6980.
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So Ken, let’s start by giving our listeners an idea of what problems can arise when they do not disclose all of necessary financial information that they should be disclosing. Your first question is: Why is financial disclosure required?
In the jurisdiction that Brahm and I practice in, it is required that all court hearings and all court proceeding that the litigant fills out the financial statements, and they have them sworn by a notary or a lawyer attesting to the True Thereafter statement. The financial disclosure or financial statement outlines a person’s income and liability. The reason why this is necessary is that it is impossible to come to an informed decision about financial consequences and the range of financial settlements without having proper financial disclosure. So financial disclosure is mandatory in Ontario when you are in a court process.
I know when I was going through my own divorce, there was a certain amount of distrust for people. Do you find that, in general terms, one spouse does not trust the other spouse to come clean on all of the financial information?
Ken Nathens: It is an interesting question. It really depends on the circumstances. Some spouses trust each other, make the proper amount of financial disclosure or otherwise, and the financial disclosure is not very complicated. For example, if a couple has a house, they are both employed in jobs, and then there is usually some level of trust. What I find from my experience is the more sophisticated somebody is financially, or the more financial assets he or she might have, the more difficult it is to get to the bottom of it in terms of the value of the assets and the degree of the holding.
So for example, if somebody is involved with a corporation and they have shares or the right to stock auctions, or maybe involved in trust holding, that is where there is a degree of mistrust. Sometimes, the mistrust is not so much necessarily “not trusting the other party” as much as it is just not knowing what is there, and not knowing where to look.
What the consequences if you do not disclose?
Ken Nathens: Well on a practical level, if you withhold information, it almost becomes a cat and mouse game and it becomes a very expensive proceeding. Usually if there is non-disclosure, and somebody is not providing what they have to, one side will have to bring a motion or ask a judge to make an order to make the other side produce everything. Then if the other side produces some of it but not all of it, the first party has to go back to court and it can continue in some cases for years, until you get the proper amount of financial disclosure.
So obviously, the longer this goes on, the more the mistrust, the more the cost, and the less likely a reasonable outcome will be the result. Because, often, as litigation goes on and people are withholding disclosure, the other side then becomes more entranced and more angry. On a practical level it becomes more difficult, on the other hand, if you do make a settlement and you find out that there was not financial disclosure, or that a court order is made based on financial disclosure that turns out to be less than full, there is always a possibility of the settlement or court order being turned aside on a challenge that not all the information was provided. Then you are stuck doing the whole process again.
I grew up with my mother telling me honesty is the best policy, so I guess that goes for financial disclosure as you are going through your divorce?
Brahm Siegel: That is true Dan, that is true. I can tell within a couple of weeks of having a client whether things are going to proceed smoothly – that is, if people are going to provide their financial disclosure willingly and fill out the forms properly – or if it is going to be a nightmare, in which case I do not fuss around, and I do not spend more time then I need to on my client writing letters. We start a court case when it is clear the only way I am going to make progress and move a client’s interest ahead is if I get it in front of a judge, and then I have the judge make an order for the necessary disclosure with financial penalties and consequences.
Ken Nathens: I agree, I think it really does set the tone. One thing that we should not ignore is that people are asking for too much disclosure. For example, I have seen cases not proceed or not proceed very quickly because people are asking for five or six years of bank records or Visa statements or credit card statements, and some of them may have very questionable relevance. Sometimes, it is more of what they call a “fishing expedition.” So it has got to work both ways. It has got to be full-fare, frank disclosure on one side --but there has got to be reason in the amounts of disclosure requested to make sure it really is irrelevant to the issues. Otherwise, it slows down the process on the other side.
Brahm Siegel: Where things get really interesting, as Ken was mentioning, is whether a corporate interest is involved or there are trust claims and things like that. Almost in every case of that nature, not only do you have lawyers on each side, but you also have chartered business evaluators, people whose job it is to value corporate assets and things of that nature. Typically, they will send out a laundry list of disclosure items that they say they need in order to do their work. Some evaluators are known for making their laundry list longer than others, and that can just wreak havoc in a case where lawyer and client on the other side say, “How much of this is really necessary?” Like Ken said, if I need to go back and get credit card statements for five years so the evaluator can assess the value of my corporate interest as of two months ago, it can become a real dog’s breakfast for them to sort out what disclosure is.
That is where divorcing people need to count on their family lawyer to really help them ascertain how important something is, and how unimportant something else is. I am going to move this on to the next topic because we will never get to the other four. So Brahm, you are up next. Regarding the problem of being influenced by friends and family. What could possibly be wrong with getting good advice from your friends and family?
Brahm Siegel: A lot!
I know that is the easy answer, but what problems have you seen?
Brahm Siegel: The problem is of course that friends and family, well, they are friends and family. They love you and they want the best for you. And even though it may not seem right, families breakup and people take sides. More often than not, people split along bloodlines -- so your parents are likely to side with you even though they may have loved your spouse during the relationship, and the same goes for your friends and neighbours on the block. It is just natural that those people will want the best for you and think the worst of the other side even though -- of course we all know -- everyone has good and bad parts to them.
That is fine and dandy, but taking legal advice on how to run your family, on how to structure your financial settlements, on what move to take in regards to custody and access to your children form your buddy on your hockey team, or your aunt who really wants the best for you, in my view is not the best way to go.
Right. You want the family there for support, but not for legal advice or probably financial advice.
Brahm Siegel: Yes and early on, I try to make it very clear that I am not the therapist, I am not the psychologist, and I am not the one who is going to hold their hand. I will be supportive of course, but my job is to give legal advice and it is the client’s job to make decisions. So early on in my view, it is up to the lawyer to offer good service, good communication, and if you do that, generally what happens then is the client winds up trusting the lawyer and taking the lawyer’s advice on legal matters and taking their friends and family’s advice on personal matters. I find that is where things break down, as either the lawyer does not offer good service or have good communication with the client and. Clients start to worry and take advice from the guy on their hockey team or their girlfriend at the gym, and things like that.
If you are working with a client and you find that they are having a hard time taking your advice, would you recommend that perhaps they go and talk to another family lawyer to get an opinion rather than relying on their brother, sister, the guy at work, and so on? Would that make more sense for somebody who really just can’t see the reason behind what they are being told by their attorney?
Brahm Siegel: It happened a few times in my career where the middle of a case, my client will come to me after a period of time where I have not heard from them, and I will say, “Well I have not heard from you in a while” and they will say, “Well I was not so sure about the strategy you were recommending so I went to another lawyer for a consultation and they told me that what you are saying is correct or not correct.” It happens occasionally. Really, what I try to do is that in the consultation stage before a client has retained me, I try to get the sense that the client is okay with the proposed strategy before they hire me. And I always encourage people at the consultation stage to shop around before they hire a lawyer.
I find in general, the more the client has at risk, particularly the more money and options they have, the more they shop around. And the way we encourage clients to shop around surprises them a little. They have this belief that lawyers are anxious and hungry for every little file, and will make a mountain out of a molehill. That may be true for some lawyers, but it is not true for us. So I do my best to actually push them away a bit and say, “You know what, when you are ready, when you are comfortable with my proposed strategy and I am comfortable with yours, and you are sure that you want to proceed—I will be here. You call me then.” I find that works well, because when the client does hire me, we start off on the right track and they stay.
Right. Ken, do you want to add something to that?
Ken Nathens: Back to the concern about having third parties or somebody’s friends or family influence. I often find in my practice that if you have a client who takes a fairly reasonable position and is able to work things out with his or her spouse, if their cheering section for example, their parents or friends are encouraging the very aggressive or take a very hard approach on the other side, it sometimes does not help in terms of the settlement because often people go with what their friends say, as opposed to their lawyers or taking a reasonable approach. So what I often feel is that the more people are involved in the actual litigation who are not the parties add more fuel to the fire. That has the potential to prolong things. Even though many of those people have good intentions, they actually make it more difficult and more expensive to get to the finish line.
Brahm Siegel: I will tell you this Dan, often I find that bringing the biggest member of the cheering section into a meeting or two with the client can help dramatically. It is so easy to cheer from the sidelines and tell the client, “You should be getting this, you should be getting that, all my friends seem to say this.” But when you are in the lawyer’s office and you hear the lawyer explain in details about the client’s case why this client perhaps is getting $500 less than the neighbour of the client, they say “Oh I understand, there are a lot of factors here, a lot of variables that work here” and so on.
Ken Nathens: That is an excellent point because often they only get half the story.
Okay this ties right into the next question about being flexible, or the bad side of being inflexible. How can that affect you as you are going through your divorce?
Ken Nathens: I think you have to take an open mind in terms of settlement. It depends on what your goals. I like to think that most people just want to get through their divorce is as emotionally and financially intact as possible. You have the odd client who wants to go all the way, who wants the judge to hear what he or she has to say and make the final decision because they think they are tight. They think the law is on their side. But generally, the clients that I meet really want to get to an end. They want to move on. They do not want this to be the divorce process to be all consuming.
What I think is important is to realize, is that when you are in a court or when you are in settlement negotiations, there is never really a right answer. The law, I find, provides guidelines in a sense or it provides boundaries of what is a reasonable settlement or not -- but there is no certainty or predictability with respect to an outcome of the lawsuit; specifically in divorce. You have to adopt flexibility with respect to what is accessible.
For example, if you are going to a spousal support negotiation and you say, “I am not walking out of here unless I get four or five thousand dollars a month” and the ranges are anywhere from three to seven thousand -- I am giving fairly high numbers for an example -- and you are going with a high range no matter what, there is a good chance that you will not settle. And in pursuing more, the cost will add up and even offset any benefit that you get out of proceeding further. So, in a sense, the more flexible the more you are willing to listen to the other side to understand their positions and interests, the more likely you are more to get a settlement or finish a court proceeding earlier, rather than later. And that is ultimately the goal.
And this is where it helps to keep an eye on the big picture: that the goal is to get through your divorce.
Ken Nathens: That is true Dan, and what I find is there are some clients who are entrenched and their divorce becomes their life. They have become totally all consumed with the divorce proceedings and what they think they are entitled to, and the fact that the other side somehow wronged them (either personally or legally), and they use the process as a means of getting justice. But if you are going to take that attitude, you are certainly missing the opportunity to resolve things at an earlier time, and in a manner that would be acceptable or less costly.
But Dan, there is no question that coming into the process with self-insight, self-awareness and a flexible personality will get you in and out of our doors a lot faster with more money in your pocket. That is a no-brainer as far as I am concerned.
Brahm Siegel: You should also keep in mind that there are some areas of the law that are just naturally prone to much more give and take than other areas. For example, spousal support is an area where there are a lot of ranges and there are a lot of different perspectives that lead to different results. Custody is the same thing. There is joint and sole custody and people fight about that. On the other hand, if we all know what someone’s income is, and we know how many children there are, there is nothing to fight about. There are guidelines and they are mandatory. Actually, they are not even really guidelines, they are legislated by law. And finally, if you know the value of the property items that you own, it is a formula and it is mandated -- so there is no flexibility at all.
Ken Nathens: There is though, because you can always argue that there is flexibility in terms of trade-offs, for example: “You take the business and I will take the house.” But I agree that there is some room for trade-offs. Keep an open mind of what the end result will be.
Brahm Siegel: Yes, for example, I have a case now where the parties are joint owners of a matrimonial home that has a particular value, and they are also joint owners of a commercial property that has a particular value. So again, if they can agree on the value then trading one’s interest in the house versus the other’s interest in the business becomes a fairly easy process.
Ken Nathens: Then again, it comes back to if you have an open mind you can do the trade-offs. If you are intent on getting the whole business or the whole house, then you may be arguing for a long time to do it.
Right. So let us talk now about whether people should hire an attorney or try to do this on their own. What is the problem with doing your own divorce?
Brahm Siegel: There is absolutely nothing wrong with doing your own divorce. When people say that to me, what I take away from that is they are just looking for a divorce and nothing else. And provided that all of the property has been dealt with, provided there are no spousal supports claims, provided there are no child issues, you can do a divorce. It is really easy, there is a form that you can get online, go to a business supply store and fill them out, go down to the court yourself and file them, and you only have to pay the filing fee at the court which totals about $500. Then you serve the papers on your spouse, or get someone to do it for you at a cost, and lickety-split, within two months you can get a piece of paper that says you are divorced.
Of course, you have to wait a year from the time you are separated, but it is a fairly easy process. So when people say, “Can I do my own divorce?” what they mean is, “Can I negotiate a proper separation agreement with all the bells and whistles that you typically include on my own. Can I litigate this case in court?” The answer is yes, but can you do an effective job and as good as a job as a lawyer? My analogy is when I client says, “Can I do this by myself?” I say, “Well I can likely do my own root canals but it is probably a good idea that I don’t because I don’t have the expertise to do it.”
Ken Nathens: I always look at what the client does. If for example the client is an IT specialist, I say, “Well I can probably come to your office and learn a thing or two in a day of work there, but I would not be qualified to do the job well. That goes for you, too. If you want to do your own divorce, very well.” Moving aside the fact that the client is emotionally involved, and that of course affects judgement
Right. I know that we could spend a full day podcast and you guys just covering all potential horror stories people could run into with their own divorce. I just tell people I am not a lawyer, I am just a publisher of Divorce Magazine, but I can tell you from my 16 years of experience that unless you have no assets, you have no children, you have been married for two weeks, and you really owe it to yourself to seek professional help. If the case is simple, it is not going to cost you very much to seek that professional help -- but it could help you in the long run to make sure that there is no consequences that are going to be negative to you or your spouse. So I am 100% behind it and the same way I tell people that they should seek help from therapists and seek help from financial people. These people spend their days doing that work and you give yourself the best chance to move on if you use those services.
Brahm Siegel: You know Dan, a lot of people think that even if you have a short marriage that divorce is going to be expensive, and that is not true. A consultation is very different from retaining a lawyer, and a consultation can prove extremely valuable to someone who just wants to know what their basic rights are, whether or not they have any rights, whether or not they should take any action, and how much it is going to cost. Most lawyers will schedule a consultation within a week or two of you calling them, and most lawyers are always looking for a new business and new clients. We do not get a lot of repeat business in this field, and a consultation will run you anywhere from $100 to $500, and it typically lasts between half an hour and an hour and a half. In addition, the law society offers a service where if a lawyer is a member of that particular service, they have to give a free consultation for half an hour.
Great. So I am going to tackle the last problem that people have about children. Of course it is such an important issue. So to both of you: what is the problem with having children are involved in the divorce process? How can involving them cause them pain and anguish?
Ken Nathens: I think that children are involved in the divorce process whether you intend it or not. I think children are a lot smarter than their parents give them credit for, certainly when they reach a certain age, probably six or seven or older. They are aware that their parents are in conflict. So inevitably, the children are involved. The question is, how do we keep them safe, and how do we keep them emotionally sound during the divorce? The best way I can say it is that divorce is fundamentally an adult problem. Try to keep your children isolated from it as much as possible. What this means is do not speak to them in a negative tone about the other parent. Do not try to convey to the child that their other parent is bad or unloving. Do not use the children as a clutch. For example, do not use your child as a therapist to sit down with him or her and talk about all of your problems caused by the other parent, because in the end what is going to happen is that you will have a child who becomes the parent. That is not emotionally healthy for the children according to what we hear from social workers and therapists.
Brahm Siegel: Some of the other issues that I have found in my practice with the kids is that they get subtle messages. For example, if a scheduled access visit is missed with the father when he has access every Sunday and the mother takes that Sunday and says, “Well this week you are going to miss access because I am going to send you to a birthday party,” the child gets the sense that the father is not as important. And over a year, or over a number of years, the child can probably become alienated from the other parent and lose the relationship, which obviously is not healthy. So to sum up, I think the children are involved anyway whether we intend it or not, because they know what is going on. The idea is to try and isolate them and deal with adult problems on your own without getting the children, and try to get the children’s routine as stable as possible.
And I think it goes back to -- and I think of my own divorce -- being flexible. We touched on this in terms of the process of divorce, how it is best to be flexible, but also with respect to dealing with your spouse and your children. Sometimes that takes time. I know that when I went through my divorce, it was a typical Wednesday evening and weekends for me, and then after about six months my former spouse got a different child and that meant I had the kids more. The more flexible people are, the better it is for normally them and the children.
Brahm Siegel: Dan, you raised an interesting point. I do a fair amount of mediation with families, and I often explain to them my theory about dust collectors and magnet holders. There are two types of people in family law: dust collectors and magnet holders.
Dust collectors are people who, once the separation agreement is signed, take the agreement, open up the drawer, stick the agreement in there and it collects dust -- which means that as time goes on and things change in childrens’ lives and the parents’ lives that you just mentioned, they are able to work it out. They are able to adjust. They are able to make changes to their schedule and to the childrens’ lives without reference to the agreement, which continues to collect dust.
What do magnet holders do? Magnet holders, the minute the agreement is signed, and the ink isn’t even dry, they take the separation agreement and stick it to the fridge with the biggest magnet they can find. The minute that the father, for example, does not come at exactly 5:30 to pick up the child, they look at the separation agreement and they send a message and say, “You are in violation of paragraph 12.1.6 of our agreement which says you have to be here at 5:30.” They follow it up with an email, the next day they call their lawyer, the lawyer sends a letter, and what happens is you get into this ladder of mistrust where it is tit for tat, one feels they have to respond because the other is taking that approach.
Now the amazing thing about the dust collector versus the magnet holder paradigm is that every single client I ever had since I started, says, “Interesting theory Brahm. I am the dust collector of the two of us. It is my spouse who is the magnet holder.” So I always joke that I am just the luckiest guy alive, always having the dust collector and never having the magnet holder. Or I think this goes on where people have different perceptions of themselves that others do.
Ken Nathens: Right. I have seen crazy situations. For example, if a typical drop-off takes place at a Tim Horton’s or a public place -- which sometimes happens in stressful situations -- the parents argue whether it is the front door or the back door of Tim Horton’s, or whether 50 feet from the entrance or 30 feet. I think Brahm’s point is a good one. If people want to argue, there is nothing they cannot find to argue about. When it comes to kids, obviously if you are going to interpret everything line by line and letter by letter to see if there have been violations, certainly you may point in terms of interpretation. But for your kids, that is certainly not going to help them at all.