with the same systems and processes that existed when my dad practiced law in the late 1950s. Sure, some attitudes and principles of law have changed, but overall, the system remains surprisingly steadfast. Some would say it is still costly, cruel, and inconvenient.
This book is no valiant attempt to change all that. Better and smarter lawyers and jurists have change in mind, and many law societies, governments, and educators are now working on modifications to the system that will improve, streamline, and simplify divorce laws and processes. The program for change is underway, and it is likely to continue indefinitely.
Meanwhile, as that work continues, couples continue to marry, separate, and divorce. They need and deserve information about how to think, act, and behave in the process of separation. They need to understand that there are ways to increase the likelihood that the separation itself will be survivable.
This is what this book is about. Here, we’re going to explore a better approach to separation and divorce, and encourage parties to calmly negotiate a sensible resolution of their dispute without heartache and bloodshed. Done correctly, a separation and divorce can be an empowering, invigorating, and even liberating event.
Much of the information in this book will be applicable to common-law separations as well.
An Important Note about This Book
I have been practicing family law in Vancouver, British Columbia, for 25 years. During that time, I have met and worked with all kinds of clients, in all kinds of family situations. Some of the cases I’ve worked on have been unbelievable, while others follow a predictable pattern.
Along the way, I have been educated by the process and by the clients. I believe that what I have learned can save separating couples time, money, and heartache.
Some of the people I have worked with have been notorious and famous, while others have been quiet and humble. Many of my clients struggled with horrific spousal abuse, fraud, and secrecy, while others left relationships for financial, sexual, or other reasons. I have occasionally seen clients separate quietly, in peace, and part company as friends. They, truly, are the lucky ones.
Very often, drugs and alcohol are at the center of the trouble. Other times, it’s gambling, dishonesty, or other worrisome behavior that brings the relationship to an end. However, completely “normal,” balanced, stable, hardworking, and honest people also fall out of love. Sometimes, despite the best efforts of well-intentioned parties, spousal relationships end, and former lovers part ways.
I have seen this, in my career, thousands of times. Seeing it over and over again has taught me nothing about love and marriage. However, the specific stories I have heard and handled have taught me something about family law. What I’ve learned is something that cannot be taught in law school and isn’t easily absorbed from everyday life. The lesson that I have learned, and which I hope to share in this book, is that separation and divorce can be a good experience.
This is a book about a process that can lead to happiness from separation and divorce. It is about how parties can negotiate a solution to their matrimonial or spousal separation on their own. The book explains how and when expert help can and should be obtained to assist in the process; however, it encourages the parties to do the heavy lifting and most of the work.
I am writing this book to share the lessons I’ve learned and to explain how the process works. From time to time, as a part of that explanation, I expect to tell you about examples and cases I’ve handled which have some educational value. All of the stories must, however, remain private, due to solicitor-client privilege. I can, however, tell readers about known facts, reported cases, and other “stories” so long as the privilege is protected. To do that, I must change the names, of course, and sometimes alter some of the facts to keep identities secret.
Sometimes, the language of the examples may appear and sound slightly sexist. I mean no disrespect by this, and apologize in advance for any insult I may cause. The biological fact is that so far, only women bear children. The social and historical corollary of this seems to be that there is a difference between women and men in the law, in respect to children’s issues. Maybe that’s good or maybe that’s bad. Maybe that will all change soon. I don’t know. For now, to be brief, I have used examples that I think best illustrate real principles concerning separation and children’s topics, and in the process I may use some generalizations that could conceivably appear sexist. Sorry, that is not my intention.
This book is not about the specific laws that apply in your state, province, country, or region. There are good (and bad) sources available on the Internet and in print which can assist you with understanding the governing legal principles in your jurisdiction. You can obtain that advice on the Internet, in your library, or from various legal clinics, lawyers, and other resources in your community. This book won’t help with the particular laws that apply to your case.
Instead, here I offer advice and information about the process for negotiating a mutually satisfactory end to your separation. That resolution is going to be achieved by communicating with your spouse. You may or may not be able to have that communication directly. Perhaps it will be in writing, with a friend, or through a mediator. It doesn’t really matter how you resolve your issues, as long as they are resolved in the absence of litigation.
Before you finalize or sign anything, I will remind you (several times) that you must obtain independent legal advice about the deal you are making. Getting proper, competent, and local legal advice about your situation is imperative, and it is imperative you get that advice before you sign or sell anything.
I believe this book can be helpful because although every divorce is unique, there are common themes and principles at play in all cases. Knowing these common themes from my experience in law has provided me with the opportunity to explain so that newcomers to separation can avoid common mistakes that others have made. At the same time, I can describe some of the positive steps that can be taken to increase the likelihood of early resolution of the case. I’ll also explain how to discourage costly rancor and acrimonious litigation.
Knowing something about how other family cases have ended badly or resulted in lengthy and costly litigation can help you avoid a similar fate. Having that knowledge at the outset is important because the litigation process can be self-perpetuating. Once parties start down the litigation path, it’s often difficult to get off that path.
When a dispute escalates due to litigation, or because the parties simply don’t know how to get out of the bickering cycle, there are several options and methodologies available to overcome the blockage. Some are better than others. Each of the options is easy to see from the outside, but sometimes impossible to imagine for the participants at the center of the dispute. It is for that reason that parties in a dispute need to get advice from outside the dispute. Referring a friend or family member to a lawyer, mediator, arbitrator, or even a book takes some courage. It’s not easy to tell a buddy that he or she needs help.
Legal rules and principles about practice, procedure, and substantive law vary throughout North America. The laws that govern divorce and separation in Alaska have no application in British Columbia or California. Having said that, the same basic issues and disputes arise in most cases, and do so with repetitive frustration, over and over again. This book can help you avoid making those same patterned mistakes. It can help you reach a settlement that is timely, inexpensive, and survivable. As you continue on in your reading, keep in mind that regional (jurisdictional) changes and subtle differences in the law may require careful consideration.
1
The Role of The Lawyer and The Litigant
