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Should I Stay or Should I Go?
Couples generally consult us at Sojourn Counselling and Neurofeedback when their relationship is struggling and they're looking to find a way back to the intimacy and connectedness they experienced earlier in their relationship. When at times their circumstance has seemed particularly hopeless, partners will sometimes find themselves wondering whether they'll find a way to make the relationship work and stay together.
Darnell Smith, a family lawyer practicing in Surrey lends his expertise to help couples better understand the implications of deciding to separate. He shares a few things to consider in the following article.
Should I stay or should I go?
A great song by The Clash and a question you may be pondering. Only by knowing what ‘going’ looks like, can you be confident in staying. So, let me, a Family Law Lawyer, provide you some insight into what ‘going’ may look like. Hopefully, this will help you make an informed decision to stay or go.
For this article, I am only looking at separation that involves marriage, common law status or children. I will start by discussing the processes for separation and then outline some big issues: 1.Division of Assets and Debt 2.Financial Support 3.Parenting issues
The Process of Separation
Litigation and negotiation are the two most common paths to concluding your separation. These two options are not mutually exclusive and are often beneficial to each other. Individual issues may require one option or the other. Negotiations lead to agreements and litigation leads to court orders.
An agreement should be your first option. Agreements are cheaper, faster, and more flexible. Negotiations to an agreement can include exchanging offers, 4-way-meetings, coaching, mediation, and or arbitration. If the parties agree on all aspect of their separation, then the next step is writing it down in the form of a contract. Drafting a contact is a step where legal support is advised.
A spouse can start the litigation process by filing a document with the Supreme or Provincial Court. The rules of the court will then set out what is to happen next. Steps may include document disclosure, discovery, attendance at court, hearings, and trial. A trial is rarely necessary, but it is the final option if all else fails. At the end of a trial, a judge will grant a final order. The final order will set out the judge’s decision on all issues.
Courts are a general dispute resolution system and not explicitly tailored for family law disputes. Because of this, they are not ideal for family law issues. However, courts have the final authority and can settle any issue. They are an effective, if cumbersome, tool.
Lawyers are not a necessity for litigation or negotiation. There are steps where a lawyer is very advisable. Drafting court document, appearing in court, and writing contracts are all areas where you will want to have a lawyer. If you are not sure if you need, or would benefit, from having a lawyer, set up a free consultation with a lawyer.
Division of Assets and Debts
Separation requires a divvying up of that which you and or your spouse own. Who gets what? To answer this question, you need to know what the assets and debts are. This includes any asset or debt in one or both names of either spouse.
This inquiry varies depending on the facts. At a minimum, you will need to list all major assets and debts and their value. Sometimes the inquiry requires third-party requests (e.g. to financial institutions, pension providers, etc.), expert valuations and applications to the court.
After identifying the assets and debts, it is time to split it up. You can split things up in any way that is agreeable. For an agreement to work there will be a need for compromise. If there is no agreement, then a court can decide for you. Part 5 of the Family Law Act, governs property division. A significant oversimplification is that everything is split 50/50. There are many exceptions to the 50/50 split including gifts, inheritance, and property brought into the relationship to name a few.
After separation, each spouse will likely not have everything they need and will not be able to retain everything they want.
There are two types of support that may be payable: spousal support and child support.
The amount of support, for both spousal and child support, depends on each spouse’s guideline income. Typically, the guideline income is the spouse’s total income as per their tax return. Self employment, unreported income and under employment may result in total income not being used.
Spouses can agree to any amount and duration of spousal support they see as reasonable. This may include no spousal support. No child support is not an option the court will agree with.
Child support is for the benefit of the child. As such, the adults must act in a way that benefits the child. Any agreement that does not suitably support the child is therefore problematic. The Federal Child Support Guidelines set out how to calculate the amount payable. This amount depends on the amount of parenting time.
The best interest of the child is the only factor a court will consider in terms of parenting. Opinions and feelings are only relevant to the extent that they impact the best interests of the child. This can feel unfair and isolating.
You and your spouse will need to decide on parenting time and decision making for the child. The rigid nature of parenting time often stresses parent and child’s connection. It makes holiday planning, special events, and spontaneity harder. Education choices, medical decision, religious upbringing, and many more topics can be hard issues for any spouses and harder still spouses that separate.
In some cases, there may be a need for expert to assist. This can may involve an expert examining each spouse, their relationship with the child and ability to parent. These reports are costly and invasive.
Finally, keep in mind that where there are children, there is an ongoing relationship with your spouse. It is helpful to have a method to resolve future disputes and allow for effective communication.
I hope this helps to inform your decision. If you decide that you want to separate or have more questions about separation, call me and we can chat about options.
Darnell Smith is a lawyer practicing family law at the South Coast Law Group (Darnell Smith Personal Law Corporation):
#6 – 15243 91st Avenue, Surrey, BC V3R 8P8
P: 604-496-5096 ext. 207