First in a four-part series
No one enters a marriage or common-law relationship hoping it ends.
The reality is that nearly half of marriages end in divorce. The statistics for common-law relationships are naturally murky.
Assuming you have made the final decision to end the marriage/relationship, the following are some initial considerations when picking the right lawyer.
Seeking legal advice
Although it is possible to get a divorce without legal advice, those situations are rare. Most couples have to sort out support, property and debt issues. If children are involved, parenting arrangements also need to be planned out and agreed upon. Picking the right lawyer will ease this process considerably. Use caution when your friends and family suggest lawyers that you should go to. I recommend finding a lawyer that focuses on family law and divorces.
Barrister and Solicitor
You may have heard the term barrister and solicitor. Lawyers have to write two exams — the barrister exam and the solicitor exam. The barrister side is where they represent clients in court. The solicitor side is when most of the work is done in the law firm or outside of the court room. When I have spoken with different lawyers over the years, most have a comfort zone of which location they prefer and it would be ideal to find a lawyer who has experience in court or mediation/arbitration if that is potentially necessary. Going to see a lawyer who is not comfortable going into a court room isn’t ideal if that is potentially necessary.
Collaborative law
Going to court to resolve family law issues is now usually seen as a last resort. It is an expensive, time consuming, and emotional process. Lawyers can have very different approaches to how they work with their clients. For example, you could have a lawyer that believes in collaborative family law. This type of approach may work if you have parties that are willing to speak openly and honestly. The collaborative family law approach certainly does not work for everyone. Some clients may spend thousands of dollars, have multiple meetings with lawyers, counsellors and divorce coaches only to discover that this approach will not work. You are paying many different people. Every email, phone call, and meeting with members of the collaborative group is costing money, even without the client’s presence. If your lawyer believes strongly about the collaborative family law process, I advise asking for full details on the associated costs. Comparing the collaborative family law approach to the costs of going to court is only one alternative. I am personally not a fan of the collaborative law process for most people. Consider a third alternative of drafting a separation agreement without the multiple meetings required of a collaborative family law group, and without going to court.
Mediation
Similar to collaborative law, mediation is often a better option than going to court. Once a qualified mediator is hired, the process can move more quickly. One of the advantages of working with a mediator is their ability to talk to both parties about the bigger issues, and being realistic with expectations. Mediators can help parties stay on track and manage emotions and not waste time arguing over little details. Before asking your lawyer to spend time on something small or insignificant, you should weigh the costs both financially and emotionally. The goal should not be to win every argument, but to hopefully have a few assets at the end of the day to begin a new life. Ideally, your lawyer is able to assist with as many of the disagreements as possible prior to meeting with the mediator. you have gone through the steps of having your lawyer review or draft a separation agreement, and you are unable to work through the remaining differences, then considering hiring a mediator to provide assistance. My personal opinion is that hiring a qualified mediator is money well spent. However, if you try mediation and can’t come to an agreement, there is another alternative to going to court: arbitration.
Arbitration
Arbitration is a more formal process than mediation beginning with the hiring of an arbitrator. Most arbitrators working on family law disputes are lawyers. Provided they have sufficient years of related experience, and specific arbitration training, then psychologists and social workers can also do arbitration work. The process typically involves each party submitting written briefs and evidence that are reviewed by the arbitrator. Testimony can be heard, similar to court. The arbitrator will listen to the issues and make a legally binding decision. It is not mandatory to enter this process, but once both parties enter this process, then the arbitrator's decision is binding on all parties.
Court
If you have explored the other options and not succeeded in resolving matters, you may need to go to court. The obvious challenge of going to court to resolve issues is the significant cost. The other issue to be aware of is the time delay on when you would realistically get your case heard. If you require multiple days to present your case, you could be waiting many months to have a court date. Even as you approach the court date, events may occur that result in the dates getting pushed out even further. Assuming you are willing to deal with both the costs and potential delays of going to court, you should do your research on the best barrister(s) in the family law areas. Become familiar with the terminology and steps (i.e. judicial case conference, discovery) before your meeting with your lawyer. Also, understand where you family law matter will be heard (Provincial Court or Supreme Court) can have an impact on cost and time. Cases involving divorce, adoption, and division of property are heard in the Supreme Court. Child protection cases are heard in provincial court. Cases involving guardianship, parenting time or child support can be heard in either court. Sometimes cases are split in both courts. Talk to your lawyer about the costs and time involved in going to those courts.
Conflicts of Interest
So, you have done your research and you think you have finally found a lawyer to approach. When you first call a law office they first need to check if any conflicts potentially exist. Unfortunately, if your ex has already met with a lawyer in that firm, you will likely not be able to engage your chosen lawyer. I have heard of stories of individuals going to over a dozen of the best law firms in the area to get the first free consult meeting and to ensure their ex will not be able to use the law firm’s services. Fortunately, many lawyers choose to charge for initial consult meetings.
Retainer
Provided you have cleared the conflict of interest search, then you will likely have to provide a retainer. A retainer is money provided to your lawyer in advance of them providing services. They are required to keep this money in a separate trust account. In conjunction with paying the retainer you will also typically be asked to sign an agreement. This agreement will have some information that you should read carefully. The agreement may have details of the hourly rates for the lawyer and other staff. It would also outline the other costs that could be applied against the retainer, such as administrative charges (i.e. copying, faxing, telephone), court fees, etc.
Lawyer is not working out
Not all lawyers are equal and clients need to be aware of red flags. Lawyers that send bills infrequently or with no detail, on the time charged, is an automatic red flag. Frequent detailed bills will help you understand what is being charged and you can then react accordingly. In reviewing some of our clients’ legal bills from law firms, the quality of detail on the bills can range significantly on how the legal fees and disbursements are outlined. If the bills do not provide appropriate description, you should ask for it. The bills should have a breakdown of the time, including the dates your lawyer or paralegal worked on your behalf, along with the specific activities they did. If more than a month goes by without an invoice then I would request one while your memory is still fresh on the events.
Another thing to look out for when hiring a lawyer is the personal attention they will provide to you and the structure of their team and experience levels. You should know up front whether your lawyer plans on allocating work down to junior lawyers or paralegals. If the juniors and paralegals are experienced, this can be a win-win as they are good at what they do and they have a lower hourly rate. One thing you don’t want to be paying for is different people getting caught up to speed on your situation. You also don’t want to pay for extra time while someone is learning how to do their job. If you find your lawyer has a haphazard style in terms of allocating work to such people then keep an eye on the bills.
Nothing can be more frustrating than not seeing timely progress. Have you ever gone to a grocery store to get a handful of items only to wait for what feels like forever to get through the till? I’m a huge fan of Costco because the check-out staff is so fast and efficient. I’ve been with lawyers who do not even know how to type or use technology efficiently. Normally I would not be critical with this lack of basic skill, but when you are being charged several hundred dollars an hour it is important.
It is a weird dilemma thinking of two extreme outcomes. Outcome No. 1 is that your lawyer is very efficient and things are resolved quickly with the lowest legal fees possible. Outcome No. 2 is that your lawyer may not be as efficient and things drag on for a very long time with much higher legal fees. If months go by with no progress, that’s another red flag. Most lawyers are extremely ethical and are simply just busy, but if you think things are dragging on excessively I would have a serious conversation with your lawyer about expectations and request a clear road map. I would be concerned if they could not provide this to you after a reasonable amount of time.
The job of a good lawyer is to give you advice, even if it is not exactly what you want to hear. The good lawyers I’ve worked with are able to give clients a cost benefit analysis of both the best and worst case scenarios. If you are not having any of these types of discussions then I would request it. If you are still not getting any recommendations then I would begin the process of looking for a new lawyer.
Make sure you and your ex have separate professional advisors
It is never recommended that you and your spouse use the same lawyer. You would want an independent lawyer to give you advice that is in your best interests. The same could be the case with financial professionals. If your marriage/relationship has broken down, do you feel your existing wealth advisor or portfolio manager has a bias toward your spouse? If the answer is yes, you may also want to begin the process of exploring other options for a new wealth adviser or portfolio manager. You should consider setting up a meeting with your wealth adviser or portfolio manager to determine if they are providing you a clear understanding and unbiased opinion on your financial situation and the different options available. You should be able to ask a wealth adviser or portfolio manager direct questions, and be assured that you will get unbiased answers. A good wealth adviser or portfolio manager will be proactive in their advice and tell you the things to look out for.
Get financial advice prior to negotiating and signing your separation agreement
You should have the above discussions prior to reviewing the specific financial options with your lawyer. We are periodically asked to review investment information in marriage break down situations for this very reason.
Most of the family law lawyers I have worked with over the years do an excellent job for our clients. However, lawyers are not financial experts — it is not their primary area of expertise. We have reviewed separation agreements that were either not feasible or practical in their implementation. If we review the agreement prior to it being signed, then we may be able to provide some valuable feedback directly to our client and our client's lawyer.
One thing I have learned over the years is the importance of having the right lawyer during this emotional period. A good lawyer can make the process of ending a marriage/common-law relationship easier, but it is still going to be challenging.
Kevin Greenard CPA CA FMA CFP CIM is a portfolio manager and director of wealth management with The Greenard Group at Scotia Wealth Management in Victoria. His column appears here every week. Call 250.389.2138. greenardgroup.com
The series continues each Friday:
Next week: Creating a departure plan
Feb. 21: After the separation agreement
Feb. 28: Second marriages are especially tricky
