Podcast: Advice on How To Have a “Good” Divorce
In this transcribed interview with Dale Goldhawk of Zoomer Radio AM740 in Toronto, family and divorce lawyer Lorne Fine of Fine & Associates Professional Corporation provides advice on how to experience the least challenging divorce possible. Read the interview below, or listen to the podcast at the bottom of the page.
Goldhawk Fights Back Podcast: Recorded April 29, 2013
Dale Goldhawk: Okay. I’m here in the studio if I can find the right buttons. We’re still getting used to this. How do you like our new spot, Lorne?
Lorne: It’s beautiful.
Dale Goldhawk: Isn’t it nice?
Lorne: Yeah, very nice.
Dale Goldhawk: Okay. You’re not mike four, you’re mike five. Okay. Now, that I’ve told everybody. It’s great to see. I know that you want to talk today about how to have a good divorce, not everyone had one of those as you might well imagine, but first off, let me get your definition for what that might be? What in your mind as a divorce lawyer, would a good divorce be?
Lorne: Well, in my experience there’s situations where people are very hostile. That obviously, would be a bad divorce. People are hostile it only leads to increasing costs, emotions, hurt feelings, it’s possible to have a situation where it’s less emotional. You probably need a lawyer to get involved to make it less emotional. It’s possible to be less costly. So for me, that’s the definition of a good divorce, less costly, less emotional, more dealing with the core issues and resolving things as best as possible.
Dale: So then you see that as part of the function of the divorce lawyer to try and get some of the emotion out of the negotiation. To try and cool it down a bit. Is that part of what you do?
Lorne: Well, a lawyer is taking instructions from his client or her client. Right? So you’re going to do what your client wants you to do. So some people are reasonable. You’re trying to make your client reasonable. You’re trying to resolve the issues. Nobody likes going to a trial. Nobody likes going to court. Hopefully, you can try to resolve things and to make the best of a bad situation.
Dale: You never want to go to trial as a lawyer? You want to go trial, don’t you? Of course, you do. No, I’m being serious.
Lorne: It’s not that you want to go to a trial. You want your client…
Dale: It’s the final step? I understand that. Right?
Lorne: Very, very, few things go to the trial. Very, very, few things, right? The whole process is geared towards trying to resolve things. A trial is a last sort because the parties can’t resolve it. The courts can’t resolve it. You need a judge to make a decision. The problem with that is that you’re allowing a third party, a judge, even though a judge is obviously, we have great judges in this province, you’re allowing a third party to make a decision to affect your life. It’s much better for you to have control over your future and your kids future by arranging an agreement that works for you.
Dale: But by the same token you would represent one spouse and another lawyer would represent the other spouse. This is still at base an adversarial situation though, isn’t it?
Lorne: Well, there’s different methods of dispute resolution. So, yes.
Dale: But that’s still there because you represent the interest of your client and the other lawyer represents the interests of her client.
Lorne: That’s right and hopefully you can reach an agreement or a compromise on some issues to try to resolve things by way of an agreement as opposed to going to a court and having a third party decide, but sometimes you have to go court. Sometimes, there’s no compromise. There’s no way to resolve things. One party sees the world as black and the other party sees the world as white. Right? It just takes one person to be difficult and then the whole situation is difficult.
Dale: It’s not surprising to anybody considering the thought because that might be one of the reasons they’re getting divorced in the first place, they don’t get along. That’s the whole point. Right?
Lorne: Right. You’re absolutely right, but some things when it comes to things you know, like, when it comes to property division, you look at numbers, you look at values and you try to reach a resolution based on what the numbers say. Some people may think some asset has a different value. So hopefully, both parties can come together and move forward. The lawyers, yes, have to play a role to assist the parties in moving forward.
Dale: How often do you see a situation where somebody might say to you, you know, I just, this marriage, I’m just, I want out of it. No particular set of accusations, no complaints of incompatibility. I just don’t want to be married anymore. In other words, taking a lot of the supposed emotion out of the divorce. Do you see that very often?
Lorne: It happens all the time. People just grow apart. People will just grow apart. I’ve had a situation where I acted for a husband. He said, I know I have to pay my wife spousal support. I know she’s going to get the property division. I want to make this clean and easy and let’s just come to the table with the other side and let’s make an agreement. I want this over as fast as possible. That was a very reasonable guy. He wasn’t saying I’m not going to pay spousal support. He didn’t say I worked hard my whole life and she’s not going to get a penny, right?
Dale: You hear that a lot.
Lorne: I do hear that. Okay.
Dale: We hear it out here in the non-legal world from people that we know who are getting divorced and who say things like that.
Lorne: Right and I have to say to somebody like that you are going to have to pay spousal support and she is going to get money, right?
Dale: Maybe not every last single nickel.
Lorne: No. I’ve had situations where the husband will say, she is not going to get a dime and that’s not real. That’s not reality. It’s not going to happen. She’s going to get more than a dime.
Dale: How do you in situations like this how can you keep the legal costs under control?
Lorne: Okay. How can you keep legal cost under control? Well there’s different…Litigation is obviously most costly because you’re involved in court and there’s affidavits and so on. The best way of trying to reduce cost is trying to negotiate an agreement. There’s different ways of negotiating an agreement. One way is a collaborative arrangement. Where you’re all going to get together, me, my client, their lawyer, and the other client are going to get together and try to resolve things. Quickly and easy, we’re all going to work together as a team to try to resolve things. That’s cost effective. Another method is simply I act for the one party and the other lawyer acts for the other party and we have a four way meeting and try to resolve things. It really takes everybody to work together to try to reduce cost. Everyone has to cooperate. If one party is not cooperating, if one party says I’m not giving you financial disclosure. I’m not going to tell you what my income is. I’m not going to disclose my assets. It makes things more difficult.
Dale: Well, can you be at some point, if that particular situation went to court the judge would…
Lorne: The judge would order it.
Dale: He would order that. You have got to disclose…
Lorne: That’s right.
Dale: …your sources of income, etc., blah, blah, blah.
Lorne: Right. Right. So that’s when a four-way meeting is going to breakdown if one side says I’m not going to give you disclosure. You can’t make a deal unless you have disclosure. To keep cost down, really everybody has to work together. If one person’s reasonable makes things…
Dale: So then there you are and across the table from your opposition counsel, and you may have phone calls between you over the course of negotiation or whatever, what kind of a relationship develops between the two lawyers? I mean I understand they have to work and be totally responsible for the welfare of their own clients, but there has to be some kind of working relationship between the two lawyers aside from that. Does there not?
Lorne: It’s funny you ask that because it’s a very relevant issue today. The courts want lawyers to be courteous to each other. The courts want lawyers not to hate each other because if they hate each other and they’re enemies it doesn’t help anybody. It doesn’t help the lawyers. It doesn’t help the clients. Some clients are surprised that you’re actually courteous to opposing counsel. Right? You can be courteous, but still advocate on behalf of your client to the best of your ability.
Dale: So you have clients telling you, go after the guy a little bit? Don’t let him get away with that, that kind of thing?
Lorne: Well, I have clients say that. Why, is that your friend?
Dale: Yeah, you know this guy? He’s your friend?
Lorne: Don’t you hate him as much as I do?
Dale: When in fact, you can’t.
Lorne: It’s really not productive. People think that you have to be enemies with opposing counsel and really you don’t. The family law bar is not a bunch of people, right? It may be a few hundred people. You tend to deal with these people all the time.
Dale: You’re going to know the person you’re across the table from.
Lorne: You’re going to know, yes. Absolutely, you’re going to know them and really it’s your reputation. You want other lawyers to know that you can work together. That you know what you’re doing and if necessary you’ll go to court and it’s not personal, but you’re going to advocate on behalf of your client.
Dale: How do you get to that decision? How do you get to that point where suddenly, you’re having these discussions, nothing is really happening and you wind up going to court. I mean how do you make that decision? Who actually makes that decision?
Lorne: Who makes the decision? Well, the client ultimately, makes the decision.
Dale: If one client says we’ll go to court and the other client says, no or the other client who is saying no is out of luck because the first client wants to go to court.
Lorne: It just takes one party to go to court; right?
Dle: That’s what I’m saying, yeah.
Lorne: One of the two…
Dale: That’s the one thing you don’t need agreement on is to go to court; right?
Lorne: Yeah, you go to court. If people aren’t going to cooperate, if people aren’t going to negotiate in good faith, then you need a judge to make a decision. It happens all the time.
Dale: So have you ever heard the words sitting in one of those conferences, I’ll see you in court? Do you hear that?
Lorne: It happens, yeah, it happens. A little bit cliché, but it happens.
Dale: I bet people say that? Yeah?
Lorne: It happens all the time.
Dale: I’m sure they do. Okay. 416-360-0740 or 866-740-4740, if you have a question for Lorne Fine.
Dale: 416-360-0740 or 866-740-4740, if you have a question for our resident Family and Divorce Lawyer, Lorne Fine, who’s in the studio with me coincidentally. Here’s Harvey calling from Ridgeway. Harvey, do you have a question?
Harvey: Yes, I do. Good afternoon and congratulations on the new facilities.
Dale: Oh, thank you.
Harvey: I know it wasn’t all your doing.
Dale: No, it wasn’t. Hardly any of my doing at all. Well, as a 20-year victim, I’m asking this question about the use of pensions as a family asset in a divorce case.
Lorne: Okay. What’s the question exactly? Whether a pension is an asset?
Dale: Well, I know it was back 20 years ago, it was considered as an asset, but its 20 years now in my case and I’m wondering what the current thinking is or the current law or law cases.
Lorne: You said, you’re a 20-year victim, does that mean you’ve been separate for 20 years or married for 20 years?
Harvey: Divorced for 20 years.
Dale: Divorced for 20 years.
Lorne: Divorced for 20 years and you have a separation agreement?
Harvey: Before that, yes.
Lorne: Okay and your separation agreement ways your pension is divided?
Harvey: No. The penal for support relief case said that.
Harvey: She got a lump sum settlement.
Lorne: Oh, she got a lump sum settlement.
Harvey: And I had to pay alimony and then the judge gave her half my pension.
Lorne: Okay. So a pension is an asset. Some pensions can be very, very, valuable. I have a teacher as a client and they have been a teacher for 30 odd years and their pension is worth 700,000 dollars. It can be a very valuable asset. There’s new legislation called Bill 133, that specifies that the pension administrator is going to value the pension. You get a form back. You submit your forms to the administrator of the various different pensions. They send you back a statement of value. They say what the value of the pension is for family law purposes and its treated like an asset, like any other asset value and it forms part of the parties, it’s called net family property, part of their property. What’s new about Bill 133 is you can choose to divide the pension in specie as opposed to it forming part of your assets. In other words, like in your case, your wife got half your pension, if it happened today, half your pension would be rolled into a locked and registered retirement plan for your wife. Or if you wanted to that could happen instead of let’s say dividing half the host proceeds or something to that effect. The answer to your question is a pension is still an asset always has been an asset. It’s just valued and it can be divided differently than before.
Dale: All right. Okay. With that new regulation. Okay. Thanks very much Harvey. Here’s Sandy calling from Milton. Sandy, what’s your question.
Sandy: Yes. How are you guys today?
Dale: We’re fine.
Lorne: Fine. How are you?
Sandy: Fine. Well, I could be better. I wouldn’t be going through this. My husband asked me for a separation last fall. We signed cohabitation before we got married. There was no financials with it, financial papers?
Sandy: So we’re looking at, does he have to find financial papers and I do and split the difference? How does that work?
Lorne: Okay. What exactly did your cohabitation agreement provide?
Sandy: It provided, I was working for Bus Lines and he had his own business.
Sandy: And there was no alimony, nothing in the cohab, but I understood it was while we were living together. I didn’t understand it went over to the marriage.
Sandy: And my lawyer passed on since, so I can’t ask him.
Lorne: In order to have a valid cohabitation agreement a court is going to see and look to see that the parties have financial disclosure. You have to make an informed decision when you’re entering into an agreement.
Sandy: Yes, well then I went and worked for him for 17 years.
Lorne: Okay. Did you have a lawyer when you signed the cohab?
Sandy: Yes, I did, but he’s passed on since.
Lorne: Okay. Did your husband have a lawyer?
Sandy: Yes, he did the agreement.
Lorne: Okay. You really should consult a lawyer now. It seems like the lack of financial disclosure may be an issue. You don’t know if his business worth millions of dollars when you got married. You don’t know if it was worth…
Sandy: No, it wasn’t. I did the books for 17 years. I was the accountant.
Lorne: Oh, okay. So you’re aware of it.
Sandy: So I know what it was worth and what I helped bring it up to and he doesn’t want to pay me anything.
Lorne: Oh, he doesn’t want to pay you spousal support?
Sandy: Nope. He doesn’t want to pay me anything out of the business. He put bonuses on my paycheck and I didn’t receive them. He’s done a whole lot and he’s running around.
Lorne: Well, a cohabitation agreement is an agreement like any other agreement and it can be challenged. So you really should consult a lawyer and discuss, in particular spousal support can be easily challenged especially because you were together for so long.
Sandy: I worked, I had to leave because of medical reasons, and I couldn’t be in the office since I found him running around.
Lorne: So you have a good argument dealing with the spousal support release.
Sandy: I’m not getting anything right now.
Sandy: And I asked for a lump sum and he’s revoked it all.
Lorne: Okay. Well, you really should consult a lawyer, review the circumstances. Like I said, the lack of financial disclosure seems to be critical and I think that it sounds like you have a good argument for spousal support.
Sandy: What about work related for the 17 years, now that I’ve left for medical reasons. I can’t work there anymore?
Lorne: That’s all in relation to your spousal support claim.
Sandy: Is it?
Dale: That’s all something you will tell your new lawyer.
Lorne: Tell your lawyer. Go through it. Absolutely. Look at the circumstances and it sounds like you have a good argument, but you really need to get independent legal advice.
Dale: Sandy, good luck to you, okay?
Sandy: Okay. Thank you.
Dale: A cohabitation agreement just for those who don’t have a cohabitation agreement, that’s instead of marriage, right?
Lorne: A cohabitation agreement, you mean for common law?
Lorne: Okay, yes. You can have an agreement, right. If you’re common law.
Dale: I’m married. I don’t have a cohabitation agreement because I’m married.
Lorne: You can have a marriage contract.
Dale: Yeah, but that’s a marriage contract.
Lorne: Same type of thing. Same type of thing.
Lorne: You’re right. Cohabitation can be if you’re common law and you have an agreement dealing with…
Dale: Just sets out some financial detail or whatever.
Lorne: Yes. So what happens in the event that there’s a breakdown of your relationship, what’s the financial aspect.
Dale: Here’s Joanne calling from Grimsby. Joanne, what’s your question?
Joanne: Hello. I wish I had only one question, but if you could answer two for me I’d appreciate it.
Dale: Well, we’ll see, Joanne.
Joanne: Yes. There never has been, I was married for 35 years, so my children are grown, but there never has been financial disclosure from my husband to myself.
Lorne: During the course of the marriage?
Lorne: Okay. So he kept you in the dark. That happens quite often.
Joanne: Yeah. I know of about four different bank accounts and maybe four different investments, but if I know of four, I do believe there’s at least four more.
Joanne: And we’re at the stage for trying to, he’s left and he’s got a new address in another city and apparently he’s had that address for two years, but of course I was the last to know. Long story short I don’t know how, I don’t believe his financial statements because as I said, he’s got four banks, four different investments, and he was secretive during the marriage. How serious is it for him to lie about not disclosing, lie by omission?
Lorne: Okay. So you have a lawyer now?
Joanne: Yes, I do.
Lorne: And he has a lawyer?
Joanne: Yes. Mine is a legal-aid lawyer. There’s been domestic violence involved and I find that a legal-aid lawyer is not as active as a regularly paid lawyer.
Dale: Well, I don’t know about that, but…
Lorne: Well, the problem with legal aid is that it’s restricted to how many hours you can actually work the file. So when you say not active, I think a legal-aid lawyer is under certain restrictions as far as some of the hours are concerned.
Joanne: That’s what I mean. That’s what I mean.
Lorne: So, how serious is it?
Joanne: How serious is what?
Lorne: Well, you said how serious is it to lie on a financial statement? It’s a sworn document and if he’s lied about the financial statement and you’re in court and you can bring it to the judges attention that he’s lied about his financial statement and he’s concealed the assets, he’s not going to have any credibility. A judge is not going to believe anything he says and his whole case would be shot. Part of your lawyer’s duty is to investigate and see what his assets are and to look at his income tax returns, and to look at his bank statements for the last three years, last five years and try to trace assets.
Joanne: Right. I just don’t know if a legal-aid lawyer has that latitude.
Lorne: I don’t know. You could ask that lawyer. I don’t know who your lawyer is. May be you have to make other investigations or get another lawyer if you’re not happy with your current lawyer. There are lots of lawyers in this city.
Dale: In terms of basic issues involved in a divorce. The fact that somebody is lying about their financial assets and hiding bank accounts is a pretty major thing.
Lorne: Pretty major, yes.
Dale: Yeah, I would say. That’s a big one. That’s a biggie right?
Joanne: There was a lot of lies, obviously and the history, the financial histories two years ago we I thought we reconciled after the separation, but when he came back he disclosed that he was 35,000 dollars behind on his income tax so that was added to our mortgage. That’s the kind of thing where I’ve been in the dark and I believe that was the only reason that we reconciled was so that 35,000 could be put on the mortgage.
Lorne: Well, that’s possible.
Dale: Well, Joanne, thanks very much for that. You’re going to have to go back to your legal aid lawyer and see what he or she is able to do for you and maybe consult with another lawyer. A legal-aid lawyer still has a basic responsibility to represent you in court, right?
Lorne: A legal-aid lawyer, is a lawyer that accepts a certificate and a lawyer still under the same obligations, same responsibilities and this person is supposed to represent the client as best as possible and if you don’t like your lawyer, get another lawyer.
Dale: As you say, you said earlier when we were talking, if you lie about your financial assets or you try to hide financial assets that’s exactly the kind of case that’s going to wind up in a courtroom.
Lorne: Right. That’s exactly. For sure, because the person is not credible. The person is not being honest.
Dale: Lorne Fine, thank you very much for joining us today and offering all this free legal advice. We always love it.
Lorne: Thank you for having me. What people should do is they can go on to my website Toronto divorce law dot com (www.torontodivorcelaw.com) because a lot of these issues are complicated and we don’t have a lot of time here and really people should read about it.
Dale: Toronto divorce lawyer dot com.
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