- When do you know that your marriage or relationship is finally over and there is no chance of reconciliation?
Your relationship or marriage is definitely finished when your spouse tells you in no uncertain terms that they are separating from you and they take physical action by moving out of the home or they have their lawyer send you a letter about negotiating a separation agreement. You also know that your marriage is over when your spouse serves you with court documents in which they claim child support, spousal support, and a property payment.
There is not much that you can do when your spouse has truly decided to separate from you. You can suggest marriage or relationship counseling. But it’s very unlikely that your spouse will attend counseling to save the marriage when they have decided that they want out of the marriage.
When you are considering separation or divorce, you must give a careful look at whether you want to save the relationship or marriage. In most cases, your spouse is not going to change their fundamental character and behavior. If you cannot accept your spouse for who they are, separation or divorce is most likely inevitable.
If your spouse has a particular problem that can be solved or treated, the relationship might have a chance. For example, if your spouse has a serious drinking problem, your spouse must recognize that they have a problem and get immediate treatment and attend Alcoholics Anonymous. If your spouse cannot handle their finances, they must be willing to quickly accept that there is a problem and take decisive action to learn how to handle money.
When you and your spouse are constantly arguing with each other and there is constant tension in your home, you have an excellent indication that your marriage or relationship is on shaky ground. Where each spouse no longer respects the other spouse, you can also guarantee the end of the marriage or relationship.
- How do I find out my legal rights in my separation or divorce?
You must find and hire an experienced separation and divorce lawyer to protect your legal rights in your separation or divorce.
The issues in your separation or divorce, such as child custody, access, child support, spousal support, property issues, and business issues, are much too complicated for you to handle on your own.
Your lawyer will be able to protect your legal rights and guide you through the many legal issues in your separation or divorce. They can tell you exactly what you have to do to get the best results in a separation agreement, settlement, or in the worst case scenario, in court proceedings.
When you come to your consultation with Thomas O’Malley, an experienced family law and divorce lawyer, you will find out how to protect legal rights and get a solid separation agreement that protects your rights. He will provide you with excellent representation in court if you are in family court.
Call his office today at 905-434-8837 to schedule a consultation.For more than 26 years, Thomas O’Malley has been helping spouses who are getting separated or divorced protect their legal rights. You won’t be disappointed.
- What is the difference between a separation and a divorce?
When you have physically separated from your spouse so that you are both no longer in a relationship, you are separated from your spouse. When are you legally separated from your spouse? A legal separation refers to the completion of a separation agreement between you and your spouse.
A divorce is a legal status. You are still legally married to your spouse even though you are separated from your spouse. You can only get a divorce by completing the appropriate court documents in which you claim a divorce from your spouse. When the court has provided you with a divorce order, you are officially divorced based on the date set out in the divorce order.
- What is a separation agreement?
A separation agreement is a legally binding contract that deals with the legal issues that arise in your separation. The legal issues that arise in your separation are child custody and access, child support, spousal support, and property issues.
When you negotiate your separation agreement, you reach an agreement with your spouse on all these issues. Your agreement with your spouse on these various issues must be reduced to writing in a detailed document or contract and your separation agreement must be properly witnessed to be legally binding.
The only issue that your separation agreement does not deal with is your actual divorce. You cannot simply agree with your former spouse in your separation agreement that you are now divorced.
You must obtain a court order to get your divorce.
- Should I just take my spouse to court or try to negotiate a separation agreement?
You should only take your spouse to court as a last resort. Court is very expensive, time-consuming, and can be an emotional burden for you.
I highly recommend that you try to negotiate a separation agreement with your spouse before you consider going to court. A separation agreement is generally less expensive and takes less time to complete than a family law lawsuit in court.
You also get much more flexibility in a separation agreement than you will ever find in court. You and your spouse can carefully craft terms and provisions in your separation agreement that protect your legal rights and deal with your specific concerns than a judge will ever craft in their court order.
You are also always taking a chance in court regardless of the strength of your case. When you have negotiated a separation agreement with your spouse, you know exactly what you are getting respecting every issue from child custody to spousal support. But you are never guaranteed what a judge will do in your particular case.
Your lawyer can give you an excellent idea about your chances in court and what a judge will order on the different issues. However, you can never know with certainty what the court will order. In other words, you are always taking a chance when you put a case before a judge. You are not taking a chance when you have negotiated a separation agreement that contains terms and provisions that you can accept on the various issues. You know exactly what you are getting in your separation agreement.
However, you should be prepared to go to court quickly when your spouse is not co-operating in trying to settle your case with a separation agreement. When your spouse refuses to provide full financial disclosure or is unreasonable on the various issues in your case and they continue to be unreasonable, you should seriously consider just taking your spouse to court.
I have had a number of cases in which my client’s spouse is acting unreasonably when we are first trying to reach a settlement with a separation agreement. Then, when we go to court on the various family law issues, the other spouse suddenly becomes more reasonable and we can often settle the case shortly after we start the court process.
As I often tell my clients, we often have to go to court to get a settlement. At first this may sound strange. But it is not when you think about it carefully. When you start the court process in your separation or divorce, your spouse quickly realizes that you are serious about this matter. They realize that you are going to stand up for your legal rights and they often become much more reasonable so that you can reach a settlement.
Clearly, you need the assistance of an accomplished and dedicated family lawyer to help you safeguard your legal rights in your separation, divorce or family law case.
More importantly, you need the help of a skilled family lawyer to help you negotiate a rock-solid separation agreement that protects your family law rights or represent you successfully in family court.
Call Thomas O’Malley, a family lawyer with more than 26 years’ experience in family court and negotiating effective separation agreements for his clients, at 905-434-8837 today to schedule your initial consultation.
When you come to your consultation with Thomas O’Malley, you’ll know exactly what you must do to protect your legal rights and get a solid settlement with your spouse.
Experience shows that the sooner you start working with an experienced family lawyer, the sooner you can settle your family law issues with your spouse. Call his office now to get started on protecting your family law rights!
- What is the difference between an uncontested divorce and a contested divorce?
When you are involved with a contested divorce, it is not the divorce itself that you are fighting or disputing. It is the issues related to the separation or divorce that spouses are disputing. These issues include spousal support, child support, property issues, child custody and access.
You have an uncontested divorce when you have the separation-related issues of child custody, access, child support, spousal support, and property issues already settled in a separation agreement before you start a court application in which you are only requesting a divorce.
When these issues are already settled, there is nothing for you and your spouse to dispute or fight over in court. You are simply asking for a divorce order in an uncontested divorce.
Your spouse cannot prevent you from getting a divorce in Canada when you have been separated for at least one year.
- Can you ever change any terms of a separation agreement?
You can change the terms of a separation agreement if you and your spouse sign a written agreement to amend or change the terms of the original separation agreement.
When your spouse does not agree to change the terms of your separation agreement, you can make a court application to change the separation agreement if there are significant changes in your circumstances that require a change in the terms of the separation agreement. For example, you can request a change in the terms of a separation agreement that restricts where you can reside with your children to permit you to relocate with your children to another city or province if it is in the best interests of your children.
- Can spouses use or hire the same lawyer?
You and your spouse should not use the same lawyer when you are negotiating a separation agreement. In fact, this is called a conflict of interest for a lawyer to represent both spouses in a separation or divorce. Even when two spouses are relatively friendly in their separation, a lawyer can only represent the interests of one spouse. In most cases, the legal interests of the two spouses are obviously different. A lawyer cannot represent the legal interests of both spouses without compromising or prejudicing the legal rights of one or both spouses.
- What does custody of the children mean?
Custody of the children involves determining where the children will live after the parents have separated and who has decision-making authority respecting the important issues in a child’s life.
When a parent has sole custody of a child, the child will normally reside with this parent on a full-time basis. This parent will have the sole authority to make decisions about the child respecting the child’s health, school and education, sports activities and any other area of the child’s well-being. The other parent will normally get access to the child but they will not have any decision-making authority respecting the child’s well-being.
When parents have joint custody, they usually must consult each other respecting all issues about the child’s well-being, such as education and health-related decisions. In a joint custody situation, the child can still reside with one parent on a full-time basis and the other parent has regular access to the child.
Joint parenting is an increasingly common situation. Joint parenting means that the parents each have the children residing with them for approximately half of the time. They also share decision-making authority respecting the well-being of the child.
- How is custody of children determined?
The court will examine what is the best interests of the child to determine custody of the child. The court will review the role that each parent has had in the life of the child. When one parent has been the primary caregiver for the child, the court will probably grant physical custody of the child to this parent.
When both parents have been heavily involved in raising the child and shared child-raising activities, joint parenting could be ordered. Joint parenting and joint custody will only normally occur when both parents can communicate and co-operate with each other. The court will not order joint parenting or joint custody when the parents simply cannot co-operate respecting their child.
- How much child support do I have to pay?
When your children reside with your former spouse most of the time, you will have to pay child support pursuant to the Child Support Guidelines. The Child Support Guidelines contains a grid or chart for how much child support that you must pay based on the number of children and your gross income. The Child Support Guidelines are different for each Canadian province.
The chart or grid set out in the Child Support Guidelines applies directly to individuals who earn $150,000 or less per year.
When you earn more than $150,000 per year, you will pay the straight chart amount at the $150,000 level based on the number of children that you have as well a certain percentage for your income above $150,000. The amount of the percentage is different for each province. In Ontario, you would pay the base rate of $1,254 for one child when you have an income of, at least, $150,000 plus 0.74% of your income over $150,000. The percentage is 1.16 % of income over $150,000 when you have two children plus the base rate of $1,992. The percentage is 1.49 % of income over $150,000 when you have three children plus the base rate of $2,581.
The court can significantly increase your child support well beyond the amount set out in the Child Support Guidelines when you earn much more than $150,000 per year and your children enjoyed a high standard of living during the marriage or relationship. The court will review the proposed budgetary expenses for the children to determine what the appropriate amount of child support should be in the case of high income earners.
- When do you have to pay spousal support?
A spouse will probably have to pay spousal support to their spouse when there is a difference in income between the two spouses. If one spouse earns $80,000 and the other spouse earns $70,000, the higher earning spouse will probably not have to pay spousal support to the other spouse.
There is no magic number in terms of the difference in income between two spouses that automatically means that a higher earning spouse must pay spousal support to the other spouse. However, as a practical matter, a higher earning spouse will probably have to pay spousal support to the other spouse when they are earning $15,000 or more than the other spouse.
You should remember that a higher earning spouse who is paying child support will certainly pay less spousal support than a spouse who has no children.
A spouse will probably have to pay spousal support for an indefinite period when the spouses have been in a common law relationship or marriage of 10 years or more. A spouse will usually only have to pay spousal support for a time-limited period when the spouses have been married for five years or less.
- Does a spouse have to pay half of their property to the other spouse?
Each province has some form of property settlement or division which results in each spouse obtaining fifty per cent of the value of the property in the marriage.
For example, in Ontario, you will have to make a property payment to your spouse when the net value of your assets is greater than the net value of your spouse’s assets on the date of separation. If the husband has $200,000 in net assets and the wife has $100,000 in net assets on the date of separation, the husband has to pay one-half the difference between the value of his net assets and the value of his wife’s net assets. The difference is $100,00 in this example so that the husband would have to pay $50,000 to the wife or one-half of $100,000 to equalize the value of net assets between the husband and the wife.
Your assets include your bank accounts, RRSPs, stocks, bonds, real estate, and pensions.
You calculate your net assets by determining the value of your assets on your date of separation and deducting the total amount of your liabilities, including your mortgages, lines of credit, monies owing on credit cards, and outstanding tax payments.
You are also allowed to deduct the net value of your assets on the date of marriage from the net value of your assets on the date of separation. In this way, your spouse will not share in the value of your assets that you owned before you entered the marriage.
- How are the debts actually paid?
Each spouse is responsible for the payment of their own debts. Your spouse is not responsible for the payment of any portion of your own individual debt. You are permitted to decrease the total value of your debts by deducting the total amount of the debts and liabilities that you have on the date of separation for the purposes of calculating any property payment that you owe your spouse or that they owe you.
You and your spouse are responsible for the payment of any joint debts, such as a mortgage. As a practical matter, when you sell your home as part of a separation or divorce your mortgage and lines of credit that are secured against your home or property will automatically be paid as part of the sale of the home.
- What happens to our house in the separation or divorce?
When you get separated or divorce, your house will be handled in normally one of two ways. You and your spouse can agree to sell the home. You or your spouse can also agree that one spouse will purchase the other spouse’s legal interest in the property.
If you decide to let your spouse purchase your legal interest in the property, you must make sure that your spouse refinances the existing mortgage so that the existing mortgage is paid off and you are no longer on any mortgage on this property. If you transfer your legal interest in the property to your spouse in exchange for a reasonable amount of money but you are still on the mortgage, you can be held legally liable if your spouse fails to make the mortgage payments.
When you and your spouse sell your home, you must specifically set out in a separation agreement or court settlement how the net proceeds of the sale of the home will be divided. You and your spouse will not necessarily split the net proceeds on an equal basis so that each spouse gets half of the net proceeds. For example, if your spouse owes you a property payment as described in question #13 above, you want to make sure that you obtain this payment from your spouse’s portion of the net proceeds of the sale of the home.
- What happens where my spouse cannot afford to purchase my legal interest in our house and they do not agree to sell our house?
You can probably force the sale of your home if your spouse refuses to sell the home. However, the sale of your home can be delayed for a period of time if your spouse can provide convincing reasons to the court why the home should not be sold. For example, if you have children and they are still in school, your spouse could successfully argue that the children should not be forced to leave the home until they have finished the school year.
- What is financial disclosure?
You and your spouse must exchange all information about your assets, debts, and income to each other. This is called financial disclosure. Financial disclosure is required so that your lawyer can provide you with proper legal advice about child support, spousal support, and property issues.
Your lawyer cannot provide you with proper legal advice without full disclosure of your spouse’s property, assets, debts, and all sources of their income. For example, if your spouse does not provide full disclosure on all their assets, you might agree to a property settlement that is much less than you would otherwise legally be entitled to if your spouse had provided full disclosure about their assets.
- How do you choose a lawyer?
You should find a lawyer who practices separation and divorce law as a major part of their overall legal work.
Your initial interview or meeting with a lawyer is crucial to your success in your separation or divorce. You should determine whether your lawyer will actually listen to what you are saying. If a lawyer is not listening to your concerns and goals in the first meeting, it will not get any better. You should hire a lawyer who truly listens to you and is concerned about protecting your legal rights.
One of the most underrated approaches that you must use in selecting a lawyer is how you feel about a lawyer. You should listen to your intuition or gut feeling about a lawyer. If you meet a lawyer and your gut feeling is that this lawyer is not the lawyer for you, you should definitely select another lawyer. When you go against your gut feelings about a particular lawyer, you will probably find out when it’s too late that this lawyer was not the appropriate lawyer for you.
You should make sure that your lawyer has court experience in family law. In many cases, you might have to go to court if the process of negotiating a separation agreement is falling apart and you are not getting the results that you want. If the process of negotiating a separation agreement is not working, you want a lawyer who can represent you in court. It can be very expensive to use one lawyer to try to negotiate a separation agreement and then have to use a second lawyer to represent you in court.
When you come to your first appointment with Thomas O’Malley, you get the benefits of his proven track record as an excellent family lawyer with more than 26 years helping his clients to settle their family law issues and representing them effectively in family court.
Call his office today at 905-434-8837 to start defending your legal rights in your separation, divorce or family court case. He’ll give you the family law edge you need!
- What is the overall best approach to take in a separation or divorce?
You should hire a separation and divorce lawyer to protect your legal rights. You should definitely protect your legal rights but also you must be flexible in reaching a settlement with your spouse. You should not adopt an “all or nothing” approach to resolving your separation and divorce issues.
You should settle all issues respecting your children from what is truly in the best interests of your children. You should ensure that you have an active role in raising your children after you and your spouse have separated.
I highly recommend that you approach the financial issues in your separation or divorce from a business person’s perspective. You should try to reach a settlement that a reasonable business person would accept or propose in the circumstances of your case.
You should never make any settlement in your separation or divorce about any issue when you are really upset or angry. You cannot make the best decisions when you are truly angry or upset. Always delay making important decisions in any area of your life, including resolving issues in your separation or divorce, until you are calm and have had time to reflect on these issues and decisions.
After you have come to your initial consultation with Thomas O’Malley, an experienced family law and divorce lawyer, you will know the right approach and strategies to take to get the best results for you in your separation or divorce.
I wouldn’t advise to take any action in your separation or divorce until you have come to your first consultation with Thomas O’Malley.
Call him today at 905-434-8837 to schedule your first appointment. You’ll be glad you did!