Many people who are separating want to avoid paying legal fees as they feel they cannot afford a lawyer. While it is very understandable that people feel this way, as lawyers generally bill at a high hourly rate, there are some very good reasons why you should at the very least consult a lawyer if you are going through a divorce. Not doing so could potentially cost you a lot more than the legal cost you will incur in consulting or retaining a lawyer to assist you with your separation.
When clients come to see me for an initial consultation they tell me that their “friends” have told them various things that have sent them into panic mode. Very often the information that they have obtained from their “friends” is inaccurate or has been exaggerated or twisted in some way. Some of the common “myths” that I hear almost on a daily basis are as follows:
- If parents have joint custody of children then neither parent pays child support;
- If a spouse leaves the matrimonial home he/she will lose all of their rights to the home;
- If a parent is an “access parent” they do not have the right to information about a child from schools, doctors, etc…
- Common-law partners share property in the same way as married people;
- People are considered “common law” for family law purposes after only one year of living together;
- All people have to do to “equalize” their property is to share their assets equally when they separate.
All of the above statements are inaccurate and misleading. If someone was to follow this advice it could leave them in a position where they enter into an unenforceable separation agreement with their spouse, only to end up in court several years later and having to start from square one.
I always encourage people to settle the issues arising from their separation as expeditiously as possible and to minimize the involvement of lawyers if they want to keep the costs to a minimum. That being said, in order to have a valid and enforceable separation agreement, you need to first understand how the law applies to your family’s situation. You also always need to exchange full and frank financial disclosure of your income and all assets and debts as of marriage and as of the date of separation as any agreement done without disclosure is liable to be overturned by a court if it is ever challenged at a later date. I have even seen agreements overturned at the request of the party who drafted the agreement on the basis that there was insufficient financial disclosure exchanged at the time of the drafting of the agreement!
It is also wise to obtain “Independent Legal Advice” and to have a certificate attached to your agreement to verify that legal advice was obtained. It is also important for your spouse to have independent legal advice. This way, neither party can later argue that they were not aware of their legal rights when they signed the agreement. Another advantage of having independent legal advice is that if the lawyer has failed to properly advise you about your legal rights and responsibilities of the agreement is poorly drafted, and you have economic damages as a result of the lawyer’s failure to give adequate legal advice, you can sue the lawyer and obtain compensation from the lawyer’s professional insurer. This is very similar to “title insurance” in that your agreement is in effect insured if you have a lawyer review it and give you independent legal advice.
If you want to minimize your costs, try negotiating an agreement “in principle” with your spouse either directly, or through mediation and get a lawyer to draft up an agreement based on your agreement in principle. There is also the “collaborative practice” model where you come to an agreement by meeting with your lawyers in four-way meetings without going to court which is usually far less expensive and more efficient than litigation.
If you want to save money, going to court should always be a last resort. Going to court with a lawyer is especially expensive because so much time is spent waiting outside the courtroom to be seen by a judge. On occasion, people go to court, spend the entire day waiting to be heard and are told at the end of the day to come back another day as the judge has run out of time to hear their matter. If you have a lawyer with you waiting, you may have already spent up to $2,500.00 waiting for nothing just for that one day.
Many people at court are unrepresented (as much as 60% of the litigants). These people find themselves waiting hours to meet with duty counsel who can only assist them if they are “financially eligible”. The test they use to determine eligibility is a stringent one and is meant to limit the service to those who are truly below the poverty line. People who have a full-time job are most often not eligible. Trying to understand the court process without legal advice can be incredibly frustrating as there is a myriad of court forms and procedures that you need to know in order to be prepared for court. If you do not come prepared, the judge could simply refuse to hear your case or may not have the facts s/he needs to make a proper decision or to direct your matter properly.
The bottom line is that it pays to spend a few dollars to have a consultation with a lawyer before you make any decisions regarding your separation and divorce and to retain a lawyer to draft an agreement or give you independent legal advice. That way, you may only have to do it once and can likely avoid the terrible experience of having to go to family court only to end up with the same result.