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What should I know before discussing divorce or separation from my partner?

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February 6, 2020

Thank you for attending last week’s webinar titled: What should I know before discussing divorce or separation from my partner?. Below is an outline of the topics discussed and responses to questions from the webinar.

Step 1: 

What do YOU want. Not what’s fair, not what does the other person want,  what do you want.

Clarity of your intentions is a very important first step!

Step 2: 

Why do you want it?

With steps 1 and 2 clear,  you have a starting base from which to think of everybody else.

You will think of others, especially the children but your WHAT and WHY gives you and your lawyer a base from which to start resolving the issues that may arise from the separation.

Step 3: 

Put your mind to some broad substantive areas and your rights and responsibilities in these areas.

Custody and Access

  • What parenting arrangement is in the children’s best interest?
  • Is One or Both Parents better able to care for the children daily? If not, which parent is better suited for the role?
  • What kind of access arrangement works better for the children?
  • Remember Maximum Contact Principle
  •  Gatekeeping | Estrangement vs. Alienation

 Child support 

  • Remember – 50-50 doesn’t mean no child support.
  • There might be a set off amount payable
  • Special and Extraordinary expenses are paid over and above regular child support payments

 Spousal Support 

  • Is there entitlement? Remember, this is a threshold question. You must first be entitled to spousal support before discussions relating to amount or duration.
  •  Child support takes priority over spousal support payments so while you might be entitled to spousal support, the payor may not have the ability to pay.

 Division of Property

  •  Remember the Limitation Periods – 6 years from the date of separation or 2 years from the date of divorce
  •  Property regime differs for common law vs. Married spouses

Step 4: 

What dispute resolution mechanism do wish to use in resolving your dispute?

  • Negotiation (with or without counsel)
  • Mediation (with or without counsel)
  • Arbitration (or Med – Arb combination)
  • Litigation

Or a combination of all of the above.

QUESTIONS 

Q: What dispute resolution method do you find most effective?

A: Any combination of negotiation, mediation or arbitration.

Q: As a common-law wife, can I get equal sharing of our property?

 A: It depends on the specific facts of your case. If you can show that your partner would otherwise be unjustly enriched, you can get the court to reverse the injustice by ordering a division of property. The court may or may not order a 50-50 split. It would depend on the facts of your case.

Q: What if my ex is refusing mediation?

A: Unfortunately, there isn’t much you can do. Mediation is a voluntary process and your ex must choose to participate in the process. In limited circumstances, where appropriate, the court may order the parties to mediate.

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