Divorce is traumatic. It is not realistic to expect that a divorce will be painless, or that the road to divorce and separation settlement will not have bumps along the way. The following points may lead to a less stressful divorce; if not necessarily a smooth one:
- Avoid court if possible: Court proceedings should be used as a last resort, when negotiation or mediation outside of court will likely not result in a reasonable settlement. If there is a possibility of reaching a negotiated settlement prior to court proceedings being commenced, then this possibility should be fully explored. Once the divorce is in court, there are often lengthy delays and related expenses, and court proceedings tend to create more animosity between parties — not less.
- Be realistic: There are two sides to every divorce story. Whether your divorce proceeds through negotiation, mediation or court, it is not realistic to expect that one party will be the “winner” and the other side will be the “loser” in the divorce. Usually court judgments and negotiated settlements take into account the interest of both sides and the children, and court decisions and negotiated settlements are seldom one-sided victories. Parties to a divorce should avoid going into the process with an “I am going to take him/her to the cleaners” mentality, as this will lead to added expense, and ultimately, disappointment with the result.
- Remember the children: Children have the right to know both of their parents and spend as much time with each as may be in their best interests. Children are often more flexible and adaptable than parents in divorce proceedings give them credit for. Attempt to be creative with your former partner in coming up with a parenting regime that works for the children. Remember that your former partner has qualities you once admired, which may likely benefit the children. Unless there is no other way, do not delegate decision-making powers regarding your children to a third party judge or arbitrator who does not know your children.
- Disclose, disclose and disclose: In Ontario where I practice family law, full financial disclosure in a divorce proceeding is a must. This includes: disclosure of any and all relevant income, business, or company information of a payor. Often this disclosure may include financial records going back three years or more. The theory is that a fair settlement or judgment is not possible without full and frank financial disclosure. The quicker that disclosure is provided on a voluntary basis, the less expensive the ultimate settlement or divorce judgment will be to obtain.
- Get good counsel: Other than the simplest of divorces where there are no children, no property, and a very short term relationship, divorce and separation proceedings are complicated. There are a number of ways to resolve divorce and separation disputes: either through mediation, negotiation, collaborative law or court. Do your research and find a lawyer or mediator who is trained to deal with divorce and family separation. Your lawyer should be someone with whom you are compatible with, and who can assist you through the process.
Divorce and separation is not a smooth process. The five points set out above will minimize the financial and emotional distress caused by the process; however, will not likely eliminate them altogether.
Ken Nathens is a partner in the law firm of Nathens Siegel, a Toronto firm that restricts its practice to divorce and family-law issues. Ken has experience in all aspects of divorce and Ontario family law and devotes much of his time to assisting clients with custody and access disputes.