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Family Law and you

The breakup of a relationship is extraordinarily difficult on you, both emotionally and financially, but grown ups and children alike can and do survive separation and divorce. The legal issues that arise at this time are complex and important, involving choices and decisions.

The selection of a lawyer is one of the most important decisions you will make. Who you choose can powerfully affect how your divorce moves forward. We recommend that you take your time to find the right lawyer for you. We encourage our clients to interview us to determine if we are the right fit for them.

Some couples resolve their divorce issues without a lawyer or any other professional for that matter.

Others engage in drawn-out courtroom battles that add to the emotional and financial costs of divorce. Most can find their needs met between the two ends of this spectrum.

There are several choices to consider when deciding how you want your divorce issues to be resolved:

• Minimum legal involvement – You manage your divorce making use of a lawyer on an "as needed" basis for help in drafting agreements and other documents;
• Mediation – A mediator is someone who remains neutral and meets with both parties to assist them in reaching their own agreement. Mediators can be lawyers, mental health professionals or anyone else with an interest in mediation. Mediators do not give legal advice, and consequently, retaining your own lawyer is advisable;
• Collaborative Law – Several lawyers in Nova Scotia have been specially trained to advise and assist in negotiating an agreement on all issues. Each party retains his or her own trained collaborative lawyer to look after his or her interests. In this process, the lawyers cannot go to court. Settlement is the only agenda. All decisions are made by the parties. The lawyers facilitate the process and generally prepare the necessary documents;
• Adversarial Approach – Each party hires a lawyer. The lawyer represents you and takes instructions from you. The lawyer's job is to give you sound legal advice. The lawyer advocates for you and you alone, whether it be to negotiate a settlement on your behalf or to litigate at trial;
• Arbitration or binding Settlement Pre-Trials – 5. Arbitration or binding Settlement Pre-Trials - Parties may choose a private arbitrator who will be given the power to make certain decisions for them as an alternative to taking their case into the public court system. Some judges will agree to make a decision without the necessity of a trial if both parties agree to participate in a binding Settlement Pre-Trial.

You should ask yourself, "What is the best choice for me?" Consider these questions when deciding which choice is best for you. Are you and your partner likely to approach the issues civilly and respectfully? Is it important for you to keep open the possibility of future friendship with your partner? Do you have children and will you be co-parenting with your partner? Do you and your partner have the same circle of friends or extended family in common that you both want to stay connected to? Do you take personal responsibility for handling conflicts with integrity? Do you want your case to be private and not on the public record? Do you want to make your own decisions as to what is best for your family or will it be necessary to have some other person, such as a judge, make the decisions for you?

Once you have considered your particular situation and the choices available to you, you will most likely have questions with respect to your rights and obligations as a spouse and a parent.

In our experience, most couples focus on two issues:

• Children; and
• Money.

Generally speaking on the issue of children, the law is clear that the children's best interests are paramount. Children have a right to have maximum contact with each of their parents.

On the issue of spousal support, the law requires full disclosure with respect to the marital background and the financial roles played throughout the marriage. For example, if one spouse was the breadwinner and the other spouse was a stay-at-home parent, it is likely that spousal support will be an issue. Spousal support is based on entitlement. Once entitlement has been established, there are two remaining issues, duration and quantum. Spousal support is based on ability to pay, on the one hand, and need on the other hand.

On the issue of child support, the Federal Child Support Guidelines set out the criteria in determining both the base amount of child support and contribution to extraordinary expenses. Child support may be straightforward in situations where the payor spouse is an employee. It may be quite complex, if the payor spouse is a shareholder in a company.

On the issue of the division of assets and debts, generally the law is clear that assets are divided equally, unless the party claiming an unequal division in his or her favor proves that an equal division would be unfair and unconscionable.

The foregoing sets out the primary issues separating spouses must resolve, however, there can be a multitude of other issues from interim suit costs to a valuation of business assets. You will want to ensure that you have been properly advised on all of the issues and know all of your choices before committing and making a decision.

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