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By Val Hemminger; Family Law Lawyer, Divorce Coach and creator of The Better Divorce Project
I am regularly amazed that so many people have done little or no preparation when initially consulting with me. Initial preparation saves you and your lawyer oodles of time thus significantly reducing the amount of your investment in legal fees.
Regardless of whether or not you retain a lawyer, foundational preparation is the key to having you gain clarity for your path forward.
Because this is likely your first separation or divorce, you probably have only an inkling of an idea as to what you need to do to prepare. This list is not exhaustive, does not have to go in order, and not everything in it will apply to you, but it will give you a great start.
Preparation is key.
You want this at the top of your to do list.
Doing a little background work to understand and protect your finances is important. There is no shame in it. However, I know that otherwise intelligent, well-educated clients of mine will often have no idea about their financial circumstances. It leaves them vulnerable and can be very costly.
I am thinking of someone I will call Paige.
Paige is in her mid-thirties. She is not yet a parent. She is university educated and holds a great position at Canada Revenue Agency (the same idea as the IRS for Canadians). What I am saying is that she is no dummy.
Paige also happens to be somewhat naive. Despite her intelligence, great job and understanding of Canadian tax legislation and procedure, she did not have her own bank account, personal savings, or access to credit.
Paige married relatively young to a very sweet and kind man. They had a nice home with a mortgage being paid off quickly because she and her husband had well-paying jobs. She was earning a great pension as part of her employment. The point is that Paige had little concern over her finances.
However, Paige's life wasn't perfect. She had a one-night affair and her husband ultimately found out.
Because of his own hurt and despair, he reacted very strongly. Without a minute of notice, her husband canceled Paige's spousal credit card, removed all funds from their joint account, and demanded she leave the family home immediately.
The good news is that Paige was not out on the street because she had family support. Her sister lent her some funds, she did an initial consultation with a lawyer to understand her rights and obligations, opened up her own bank account, applied for and obtained her own credit card, and some friends invited here to stay with them on a temporary basis.
The whole point of me telling you this is whether or not your marriage is stable, you also have to understand and care for your financial affairs. Even if “ money ” is not your thing, it is too important to ignore.
Look at this list and do what needs to be done. This list does not have to be accomplished all at once, and it does not have to be accomplished in order. Some of the things on this list might not even apply to you.
Clarity is key to your foundation which will lead to you being empowered to make the right decisions when separating or getting divorced.
If you and your spouse have a joint account for joint household expenses, that is fine. You can transfer funds to your joint account once deposited. The point is that you need your own money. Like it or not, money is what will give you access to the resources and support you need as you go through the separation and divorce process.
Don't leave yourself vulnerable.
Don't expose yourself as Paige did.
Although Paige was ultimately fine after some initial intense stress, a lot of drama could have been avoided if she had her own bank account and credit card.
I have some clients that hold a credit card that their spouse knows nothing about. This allows them to access resources, such as an initial lawyer consultation. They can also order helpful books and other resources online because of the convenience of having their own card.
Face it, some spouses are controlling. They might review each of your expenses on a monthly basis. Maybe you are not ready for them to know you have sought some initial legal advice, for example, or that you are seeing a counsellor on a regular basis.
Having your own card gives you access to resources that you might not otherwise have.
Because Paige had a mortgage, she had a credit rating, and it was easy for her to get a credit card. However, that might not be you. Credit cards, loans, and mortgages help you establish your own credit score.
Establishing your own credit score is very important, even if you are not the type of person who likes to carry any kind of debt.
Now, you may already have an established credit score. That's great and now that you have that credit score, you want to protect it.
A good credit score can save you countless thousands of dollars because good credit scores get the best deals on mortgages and large loans. If you wish to buy a different home, this will be important. A great credit score also allows you to negotiate better terms on short and long-term loans.
When you have a great credit score, you also have access to the most rewarding credit cards on the market (I have traveled a lot of different places, flying business class always, solely because of the points I have earned on my credit cards, for example). There are lots of other advantages too.
So, although your separation will not impact your credit score, your credit score could be negatively impacted because of late or missed payments.
Separating can be a very stressful time. If you live in a community property state, province, or country, you and your spouse will be equally responsible for the debts acquired during your marriage. If you are on a joint mortgage and your spouse says they will take over the mortgage payments on an interim basis that is good but remember if they miss a payment, it affects your credit too.
Keep an eye on the accounts and make sure all bills, loans, credit cards, and mortgage payments are made on time.
I am compelled to mention this here, even though we are discussing your preparation phase for your separation.
You want to always look to the future, and your legally binding final separation agreement is closer than you think. You want to ensure that any joint mortgages, lines of credit, credit cards, and loans are closed or that there is a process and agreement to get them closed.
I am reminded of someone I will call Brad. Brad and his ex-spouse, Stephanie had a legally binding separation agreement. They were pretty amicable and came up with the agreement themselves. They also pulled an agreement off the internet and wrote it up together. Sounds great right? Well, Brad missed a very important thing. Stephanie did not.
Brad and Stephanie were a relatively young couple. They agreed to sell their house, pay off their mortgage and credit card debt, and divide the remaining proceeds.
As part of their agreement, their joint credit card with an outstanding balance of $2,300 was paid off. Brad did not think of cancelling the card. The credit card had available credit of $35,000. Stephanie remembered that the card had available credit and started using it. In fact, she used the joint credit card to pay lawyer’s fees to litigate against Brad regarding a parenting issue (they became less amicable over time but that is another story . . . ).
After Stephanie used up all the available credit on the joint credit card, she went bankrupt, thus leaving Brad as the sole remaining responsible person for the credit card debt.
The credit card company went after Brad to pay the balance. The credit card company did not have to care about or consider that Brad and Stephanie had separated and had a final separation agreement. They also did not have to consider that Stephanie and not Brad, had racked up the debt. They were both responsible for the debt.
The end result is that Brad ended up paying the $35,000 as he was the only remaining “debtor” after Stephanie declared bankruptcy. It was a bitter pill to swallow considering that the debt was incurred due to Stephanie litigating against him.
Brad effectively paid for Stephanie’s legal fees to fight a parenting issue that never should have gone to court in the first place. Ouch!
The lesson here is that you want to make sure you have no loose ends. That is, open lines of credit, loans, mortgages, and the like where you are jointly responsible unless you have a specific agreement otherwise.
Are you concerned about your ex being dishonest about the finances?
For some people, their finances are easy. They each have a regular employment-type of job with a regular pay cheque. They have little concern that the other party has assets they do not know about.
Most of the clients I have acted for over the years are just that. They each have a job, they have a house, they have a mortgage, a car loan or two, and some credit card debt. There is nothing to worry about regarding someone being dishonest about the finances.
However, there are those other cases. Although I tend to attract honest, caring, and decent clients, it is not always the case.
I had a client. I will call him Barry. When Barry retained me to help him with his divorce mediation, I was happy to assist him and get him through the separation and divorce process.
As part of that process, each party exchanged sworn affidavits containing financial statements outlining their assets and liabilities. When Barry advised me of his assets and liabilities, I believed him. He affirmed he was telling the truth when I witnessed his signature on the legally sworn affidavit setting out his finances.
At mediation, I soon discovered that Barry had not been telling the truth. Barry was self-employed and although that did not originally concern me, I became concerned when his wife disclosed bank accounts and other investments that Barry had failed to disclose in his affidavit. He had hundreds of thousands of dollars that he had no intention of disclosing or sharing with his wife.
This was a second marriage for both Barry and his wife. Because Barry always seemed so secretive about finances, his wife became suspicious. Before their separation, his wife took great pains to photograph bank statements and investment statements if Barry ever left them lying about the house. Sure, we could say this kind of sneaky on her part, but it ended up being great insurance when Barry failed to disclose many of his assets.
The point is this, if you have a question mark around whether or not your spouse will be honest, arm yourself with the information you need if your hunch is right. The norm is to go back three years if you can or even longer if possible.
Paige was okay in the end, however, having access to your own bucks empowers you.
Knowledge and clarity are the best-paved roads to your future.
If you are like me, you might find this stuff tedious and boring. Yet, knowing where you stand is also important. Gather the information and know your numbers. If you can’t STAND this stuff, spend 10 minutes (just ten!) a day gathering up what you need.
Here are the suggestions of what you need to gather up, copy and list:
Gather, PDF, copy, and get these documents' originals as much as possible.
When negotiating you need to have the correct information in front of you. If you have a lawyer, they need to have the right factual information and be aware of and have had the opportunity to review significant documents including agreements.
Don’t damage your chances like the person I will call Brian.
Brian came to me because he was separating from his partner of 18 years. They had two children who were teens. We were proceeding to mediation to divide the property. The opposing lawyer said he was not entitled to anything. I thought that was ridiculous. The problem was, unbeknownst to me, I did not have all of the facts.
Although the house was in his spouse’s name (again, don’t forget to check the law specific to your jurisdiction and get advice related to your family’s unique circumstances), he had contributed to the cost, maintenance, and upkeep of the house. His partner also had substantial savings, and he did not. He was a hands-on great Dad. He loved his daughters and put everything back into the family, including his earnings.
He did mention once (only in passing by the way) that once a lot of years ago, he had signed what he called "a ridiculous piece of paper". He said she forced him to sign, he said, without allowing him to talk to a lawyer or get legal advice. The agreement said that if they separated, he would not get anything in terms of assets. He also said that when he signed the "ridiculous piece of paper", he wrote on it “signed under DURESS!”
I asked him if he could show me the ridiculous piece of paper. He said he had lost it years ago and didn’t have it anymore. As a result of what he told me, I did not feel there was any cause to be concerned. I was wrong.
Now, let’s blast forward to the date of the mediation. The parties had exchanged financial statements, and I had done the steps to prepare for mediation with my client. I was confident that we were well-prepared to negotiate a reasonable settlement.
Then, to my surprise, the opposing lawyer pulled out the “ridiculous piece of paper” my client had previously mentioned. It was not a ridiculous piece of paper at all but a legally binding agreement that my client had signed in front of a lawyer.
He had received independent legal advice before signing it. As it turned out, his spouse had asked for him to agree because he had, more than once, taken all of the family’s funds out of accounts and went gambling, thus losing the money. I am not saying my client was lying, I am saying that he forgot the real facts. That kind of thing happens.
The point is this: If I had seen the agreement in advance of our mediation, I would have advised him differently. Let’s just say I had to manage his expectations and significantly reduce what he was expecting.
If you are going into a negotiation or instructing a lawyer, make sure you have seen and reviewed all the relevant documents.
So, here is the list of what you might want to gather:
In this world of double-factor authentication, people’s identities being stolen, and data being compromised, you would think this would be obvious. Well, not always.
When separating, change your passwords on all your accounts. I mean all of them.
This includes your email, banking logins, and credit cards. Since your spouse may know your passwords (or be able to guess), this helps ensure your privacy.
I have had cases more than once where the matter is high-conflict, and the high-conflict party seems to know my client’s every move, including emails where I give them confidential information and advice.
You do not want your ex to know what you are saying to your lawyer, friends, or other supporters. Change your passwords. You can’t be careful enough.
Make sure you have your own phone. And nope - a landline does not count.
If you are not ready to hire a lawyer, having an initial consultation with one is a great foundation. You want to ensure you know your legal rights and responsibilities specific to your situation and the jurisdiction in which you reside.
The thing is, make sure you come prepared. The more your lawyer knows in terms of the context of your situation the better they will be able to help you.
With Your (soon-to-be) Ex:
Being as non-combative as possible starting right away is a great thing. You can impact the entire way your separation process will go if you are careful about your first conversations with your ex-spouse. Please check out the resources section for the Best Email You will Ever Write and the BIFF Method.
With Your Kids:
If you read one parenting book, and just one, and have not yet read it, read or listen to How to Talk so Kids Will Listen & Listen so Kids Will Talk by Adele Faber and Elaine Mazlish.
It will transform your relationship with your kids to one where they trust you and you communicate and are connected. I can’t recommend it enough.
Please see the chapter about speaking to your kids. In a nutshell, what do kids need to know?
They need to know that they are loved. They need to know that they will still see each of you, their parents (assuming this is true and hopefully it is). They need to know that the separation is not their fault. Also, kids will often have very big feelings about the whole situation. Allow them to have them.
Every city has that lawyer (or 2 or 3) known for being a terrible high-conflict, combative person who will be guaranteed to fight every step of your case. Having a high-conflict lawyer on the other side of your case is bad for you, bad for your kids, bad for your finances, and even bad for your ex.
You cannot choose who your ex will hire, but you can choose who they cannot!
For example, dealing with the tsunami of correspondence from such a high-conflict lawyer unnecessarily increases legal fees, turmoil, and stress.
My city used to have three of such lawyers. One died, one lost his mojo, and one still goes on tearing families apart, increasing legal fees, and dragging their clients through the court system. Their clients, ex-spouses, and the kids never recover it seems - either emotionally or financially.
You don’t want that.
So, what to do?
I know this is a cheeky method to ensure your spouse does not hire such a person, but it is an effective strategy. Some people think it is unethical. Again, I disagree. Having a bully lawyer disqualified from acting on a matter is a good thing.
What is unethical is a lawyer that bullies clients, their ex-spouses, and who drags parents through the court system.
Here is what I am talking about.
The background to this is that once you meet with an attorney for a consultation and discuss your situation, they are bound by solicitor-client privilege. This means they cannot share your private conversation with them with anyone else unless you agree. They are also bound only to represent you, and not anyone else, including your ex. They are duty bound to have your back, and nobody else’s.
When you meet with a lawyer (unless you agree for some reason, which is very rare and almost always ill-advised), they cannot represent your ex. This is because it would be a conflict of interest.
That is why if your city has a bully lawyer, meet with them. Make sure they are “conflicted out” and cannot represent your ex. Although some people are critical of this type of action, I disagree. When you reduce the possibility of your ex being able to hire a bully, you will also reduce the risk of your divorce being a horrible and costly experience.
Even though it may not seem like it sometimes, make no mistake that lawyers are bound by their bar or law society that requires them to follow their professional ethical guidelines. Those guidelines are very clear and they require that once a potential client has discussed their family matter with a lawyer, that the lawyer cannot discuss the case with anyone else. That anyone else includes your ex. This rule does not only apply to the lawyer you spoke to but their entire law firm. If one laws at a firm speaks with or is heard by one party in a difference, no one else at that firm can speak to the other party.
This means that if you end up consulting with a lawyer, they are now disqualified from being able to represent your ex.
As lawyers, we must have a conflict-checking system to ensure that we do not accidentally meet with two parties on the same case.
Although sometimes going to court is necessary, there are many reasons to separate and divorce without court. Avoid court when you can.
Discover the processes available in your jurisdiction to get your matter resolved. You don't have to decide quite yet, but put them in your mind. Potentially discuss the options with your ex or your laws if you have retained one.
Depending on your circumstances, you might want to consider hiring additional professionals who work outside of the legal framework to assist you and your changing family's circumstances.
Here are just some of the family-based professionals who may be able to help:
For some people, they try to go it alone in terms of navigating the separation and divorce process. They prefer to read books or list two podcasts. If that is you, start now to seek the advice and support you need.
One more thing!
RED LIGHT WARNING! STOP! DO NOT sign any new agreements or make any significant changes in your life, like moving out, moving significant amounts out of money out of closing joint accounts without consulting a lawyer or attorney in your specific jurisdiction.
Disclaimer: The content of this website is only intended to act as a general overview of a legal topic and is not legal advice. It is information-based only.
All of the information is prefaced by assuming you live in a “ community property ” and “ no fault ” state, province, country, or territory. This article is written by a Canadian lawyer and has a Canadian perspective. The separation and divorce laws in the United States, Europe, Britain, Australia, New Zealand and other countries are all different.
For legal advice as it pertains to your legal situation, please consult with a family law lawyer in your specific jurisdiction.