Anecdotally, lawyers perceive January as being a very busy month for people seeking a divorce. It has been historically known as “Divorce Month.” I’m not aware of actual statistics that bear this out, but it does appear that many families try to keep it together until after the holidays. Certainly, the pandemic has exposed cracks in relationships that may have accelerated the desire to change directions in relationships, including contemplating separation. Marriage counselling may help, but if it doesn’t, you may find yourself in the unexpected place of wanting to separate.
If people are considering separating, they should carefully explore the options they have to transition their family in a way that minimizes further damage to the relationships.
As a family law lawyer who has assisted many clients over the years, I have learned a few things that may be helpful to people who are contemplating separation:
1. YOU DON’T HAVE TO GO TO COURT. I am always amazed at how many people assume that filing for a divorce is the way to “legalize” a separation. Especially during the pandemic, court matters have taken even more time to resolve. The vast majority of couples separate by negotiating the terms of their separation outside of court. Proceeding in court is usually the most expensive way (both financially and emotionally) to resolve family disputes as it is an adversarial process that pits parents (spouses) against each other, exacerbates problems in the family, and delegates the decisions about your family to a third party. Regrettably, people rarely receive the vindication or validation of their concerns they are seeking from an impartial judge, so at the eleventh hour (or when they run out of money to continue the dispute,) they settle for something less then they were originally seeking. Separating couples should look for a process that keeps them out of the court system.
2. PRESERVE RELATIONSHIPS. This may sound counter-intuitive if your goal is to separate from someone, but we are talking about families here. If there are children, there will be an ongoing parenting relationship. Even if there are no children, there are still mutual friends, in-laws, neighbours, and other people who are supports to both spouses and their children. Loss of these relationships (or the risk of loss) adds to the grieving the individual experiences, and preserving (not alienating) family members and friends, is very important
3. CONFLICT COSTS. This is a mantra I have used with clients as well as with professionals I have trained in peaceful dispute resolution processes. Separation (and divorce) is the result of irreconcilable differences in a couple’s approach to finances, parenting, life goals, priorities, etc. These differences may result in conflict that manifests itself in many ways. The goal is (or should be) to de-escalate conflict, understand the nature of the conflict and consider what will be better in the future when the conflict is resolved. I often tell clients that separating is a bit like the MasterCard ads: you can put a price on the car, the house, the bank account, etc., but happy, well-adjusted children? Peace and future happiness? PRICELESS. When considering acceptable options, a well-informed compromise can save you a lot in the end.
4. CHILDREN SEE AND HEAR EVERYTHING. The only work I do in court anymore is representing children of parents in conflict. It is a privilege to learn about the child’s experience of their parent’s divorce. Please, please, get counselling and advice before talking to your children about your separation. Telling children together in a very thoughtful, planned, and open approach is usually best. Please protect your children from conflict. Even if your words are not negative, your tone and body language say a lot to children, so be careful.
5. UNDERSTAND WHAT YOU NEED. Separation impacts many areas of your life, so there are legal, financial, and emotional consequences to the decision to separate. Therefore, drawing on the expertise of professionals in these different disciplines may be key to the “success” of your divorce. In some cases, a qualified family mediator can help the couple canvas all issues, but the mediator is neutral between the spouses and cannot give advice, legal or otherwise, (even if the mediator is also a lawyer). Only a collaborative process gives each spouse their own highly trained collaborative lawyer/advocate who works in a very intentional way along with their collaboratively trained family professionals (psychologists, therapists, etc.) and collaboratively trained financial professionals (CBV’s, Certified Divorce Financial Analysts, etc.) who, as a team, work together with the couple to assist them in resolving issues that are child focused and future looking.
Diane L. McInnis is a Family Law Lawyer, an Accredited Advanced Collaborative Professional, an Accredited Family Mediator, a Panel Lawyer of the Office of the Children’s Lawyer, and a Collaborative Practice Trainer. She practices in Waterloo, ON.