March Break Fun Without Me!

Sitting at her window, Jill is looking at the snowflakes falling slowly in her backyard.  With sadness, she is reminiscing on all the fun in the sun her family used to have during the March school break. Unfortunately, the end of her marriage also brought with it the end of the “family’s” fun in the sun vacation.  This year, Jack is leaving alone with the children on a boat cruise in the Caribbean while Jill stays home shovelling her laneway!

Most parents are exhausted as they try to keep up with their work, the children’s activities, their homework and the daily family routines.  One would think that a single parent would rejoice at having some time alone without the children.  Strangely enough, most parents, especially in the first few years after their separation, feel such a void when the children are visiting with the other parent that they spend their time alone mopping around the house and being – mostly – miserable.  What is important to remember is that you are not alone and you should see this as the perfect opportunity to do something you enjoy and that will lift your mood and feed your spirit.  It is your time to be good to yourself.  You have gone through a lot and you deserve some R and R.  Planning ahead the fun things that you will do during your time alone is as important as making sure that the children have all they need when they are away from home. 

Here are a few tips to help you make the most of this free time and regain your energy. 

1. Cut loose, let your hair down and put your feet up with a tea (or a beer)… every day!  Simply enjoy the peace and quiet in your home.  It may feel strange at first but after a couple of days you may actually enjoy hearing the humming of your  fridge.

2. Call your friends or your family and have a good laugh.  Talk about your most embarrassing moments.  Talking about your ex will only add clouds to your sunny time of relaxation.

3. Buy yourself something you’ve been wanting, such as a book, a new tool, or flowers.  Just choose something that is important to you, even if your budget won’t allow for something extravagant.

4. Treat yourself to a nap, if that’s something you’ve missed and makes you feel better. 

5. Complete a scrapbooking or a renovation project that you never had time to finish and that you can share with your children upon their return.

6. Don’t plan too much and stick to the plan!  Remember, this week is just for you.

Taking care of yourself doesn’t have to be complicated and you don’t have to break the bank to become a happier and more fulfilled single parent.  In fact, most people feel much better about their lives when they take the time to sit down and create their own fun in the sun.

I will NEVER get married again!

Jill cannot stand looking at another heart, cupid or flower which are plastered all over the stores for the upcoming Valentine’s Day.  She vows to never get married again because marriage is too much work, too many headaches and heartaches.  Although she fears being alone for the rest of her life and knows that another partner could provide emotional stability and possibly financial security, she is convinced that one marriage was enough and that love is not for her.

Following a separation, each spouse will be emotionally bruised and will deal with their feelings in a way that is unique to his or her emotional life experience.  Although some may choose to stay alone, others will remarry and many will live common law relationships.  In most Canadian provinces, common law couples do not have the same rights as married couples.  Protecting the assets you currently own becomes even more important and complex when entering a second or third relationship. Having a rock solid cohabitation agreement (for common law couples) or marriage contract (for married couples) is the best way for both parties to protect their assets and to define clearly their rights and obligations.  

Although a domestic contract will allow you to choose how you will divide money and property if there is a separation, issues may arise with respect to how you will manage your financial affairs while living together.  At the outset of a new relationship, most spouses vow to remain financially independent and share 50% of all expenses.  However, many factors may influence that decision such as the number of children living in the home, the disparity in your income, as well as child and spousal support obligations payable to a former family.  What is important is to find simple ways to keep track of monthly expenses and then determine how they should be divided amongst you at any given time as circumstances may change along the way. Here are a few simple tips that can help you better manage your joint finances:

 

1.     Getting a joint credit card dedicated solely for all household purchases such as groceries, kids’ expenses, gas, restaurants, family trips etc.  If no children are involved, it is easy for each spouse to pay 50% of the monthly account balance.  If children are involved, expenses can be shared proportionately (for example 40-60% or 30-70%) depending on the number of children.

2.     Opening a joint bank account where both spouses deposit monthly amounts of money dedicated to pay for household utilities, home renovations, car payments, mortgage etc.  Again, you can decide at the outset which amount is fair for you to pay based on your circumstances and which expenses will be shared or not be shared.

3.     Keeping a “cash’” envelope in the home where each spouse deposits a specific amount of money monthly to pay for take-out, restaurant tips and social activities.  Paying for pizza every Friday night might seem like an insignificant expense at first. However, this weekly treat can become expensive when only one person pays for the whole family.

You may currently be living in bliss but just in case you have already forgotten, the road through separation is long and stressful - even the second time around! You can live happily ever after, if you work from the beginning at not letting financial issues come between you and your spouse.  You now have the knowledge and the opportunity of protecting what you may think is rightfully yours. Talking about money is never easy, but ignoring the issue of joint finances is just like burying a volcano ready to erupt at any time! 

Prenuptial Agreements - An Insurance Policy for Savvy People

Jack is having dinner tonight with his long-time friend Dave who is getting married to his new girlfriend this Summer.   As Jack just spent the past two weeks going through his financial disclosure with a view of beginning the process of dividing his family property with Jill, what a perfect opportunity – he  thought  – to bring the subject of a prenuptial agreement with his dear friend.  After all, isn’t that what true friends are for? Since Jack now understands how the family pie gets divided upon separation – and how quickly it has changed his retirement dreams – he now  realizes that he and Jill could have chosen to do things differently when they got married (had they only known…).  Jack feels that the best wedding gift he can possibly give his best friend is to talk to him about the importance of discussing money issues (and potentially a marriage contract) now that he contemplates to unite in the financial partnership that is marriage (yes, you heard this right). 

Many people are dreading their future spouse’s reaction to the suggestion of a prenuptial agreement (in Canada, the legal term is “Marriage Contract” if you are married or “Cohabitation Agreement” if you are in a common law relationship).  It is generally believed that the purpose of such an agreement   is to prepare for separation or divorce.   This is because most people misunderstand the many purposes that a prenuptial agreement can have and most think that talking about money with your future wife/husband is not sexy...   A marriage contract or cohabitation agreement is akin to an insurance policy for savvy people – you hope that you’ll never have to use it but you have if it becomes necessary.

Who should get a prenup, you ask?  Well, everyone should at least get proper information about legal rights and obligations created by marriage or common law relationship as early as possible prior to making the commitment.  But at a minimum, a contract is highly desirable in many circumstances such as if you own a business, if you entered the marriage with significant assets or if you expect to inherit large sums of money.  In these cases, a prenuptial agreement may not just appeal to you, but will also appeal to your family members who wish for this wealth to be passed on from generations to generations and to your business partners who do not want the business to be paralyzed or affected as a result of your potential separation.  You might be surprised to hear how many businesses go bankrupt as a result of the separation or divorce of its owners (or one of them).  Furthermore, as the rules differ for common law partners, many of them leave long-term relationships with nothing but the shirts on their backs even though they have played a very important role in building the other spouse’s business or financial wealth.

One of the many assurances a marriage contract or cohabitation agreement can provide is the ability for a couple to determine in advance how they will manage their financial affairs during their relationship.  Even if you are 100% positive that you will never separate, statistics show that almost 50% of marriages (the rate is higher for common-law relationships) end in separation and divorce.  The reality is that finances do play a major role in these statistics.  So now that you know, why not fully understand how the law works and how it would apply to you?

Another assurance that a properly drafted domestic contract will provide is that neither spouse will need to spend thousands (and thousands, and thousands…) of dollars on legal fees to settle their affairs in the unlikely event of a separation. Most people I meet do not want nor can afford  to be dragged into lengthy and costly legal disputes post-separation.

And you know what?  If your loved one throws a fit after you bring  up the idea of a prenuptial agreement, that’s a pretty  good indication of how “amicable” the settlement of your financial affairs is likely to be if you ever separate. In fact, I believe that spouses who truly love and trust each other should have sufficient maturity to engage in an open and honest discussion about their views and values surrounding money. The best time to have such a  discussion is NOT when the relationship ends (as is the case for most people), but rather when you enter in the relationship or whenever  you make a major financial decision in the course of your relationship.  Love can move mountains.

Who needs a lawyer? Let’s settle this between us!

Jack is ready to officially move out of the home as he wants to get on with his life.  Since he expects to have significant parenting time with the children, he rented a home which he now needs to furnish.  For that reason, he had a discussion with Jill this morning and gave her a list of things he wants to take with him including furniture, electronics, tools and other household contents.  He also proposed to Jill a way of dividing equally between them their debts, car payments, home expenses and other monthly liabilities.  Jack was told by his best friend Mark that everything needs to be divided 50-50, so that’s how he suggested that he and Jill divide their debts and expenses.  Jill seemed satisfied with the proposal and Jack started drafting a brief separation agreement confirming the parties’ decisions.  After all, Mark and his ex-wife did it this way, they had no problems and they saved a lot of money. In addition, Jack has a copy of Mark’s separation agreement and so it should be relatively easy to just copy the relevant provisions.

For many good reasons, resolving the issues between you and your ex as quickly and cheaply as possible should be your ultimate goal during the separation process.   However, there are a few caveats you should be aware of when you decide to put a family settlement in writing without the assistance of a qualified family lawyer, or at least some guidance from such a professional. Too often, what appeared to have been a simple issue can turn out to be a very complex and expensive one.   When it comes to resolving family law matters, the agreement or the piece of paper signed by both parties may not be a binding contract recognized by the legal system.   In fact, it can be challenged on various grounds and the judge hearing your case may later decide that your “agreement” is null and void.

The first thing you must understand is that in family law, for a contract to be valid it must at least be dated and signed by the two parties before a witness.  Secondly, it is possible for the person who challenges the validity of the agreement to argue that the contract should not stand because he or she:

• Did not understand the nature of the contract, its content or consequences
• Was forced to sign the contract by some form of duress, pressure or undue influence
• Signed the contract without financial disclosure, or
• Feels that the contract is simply unconscionable (i.e. completely unacceptable in  the eyes of the law)

Finally, to make sure that the contract you signed will be enforced by a court if ever challenged by your ex-spouse in the future, you should always obtain independent legal advice (i.e. ask a family lawyer to review your agreement before you sign it).  Make sure that your ex-spouse ALSO gets legal advice but from a different lawyer (the same lawyer cannot give you both legal advice).  If you don’t, you may very well have to deal with the same issue all over again in the future, and at a much higher cost. When advising you on your separation agreement, your family lawyer will make sure that you fully understand the content of your agreement, that you are not signing the contract out of duress or some other form of pressure, and that the financial disclosure obtained from your former spouse allowed you to make informed decisions.

Who said you can keep the car and the investments too?

The Christmas holidays are over and Jill is very happy that things went much better than she anticipated with Jack and the children over the Holidays.  Since their separation in August, Jill has become more financially astute and received as a Christmas gift from her father a book entitled “The Wealthy Barber Returns” (click here to have a peak at that book) which she read while the children were visiting with Jack.  She truly enjoyed this book which explains in a simple and humorous way important financial concepts she needs to understand in order to move on with her life post-separation.  The new year has just begun and Jill feels it is now time for her and Jack to begin discussing how they will divide their family property (assets and debts).   Jack must have read her mind because he sent her an email this morning listing the items he wanted to keep including the new car, the plasma tv, the bedroom suite, and more of the “good stuff”.   That really upset Jill as she felt Jack was only thinking of himself, once again.  Out of exhaustion, she is thinking that it might be better to just let him have his way to finish this off quickly.

When anger is high and feelings are hurt, disputes over the division of household contents often turn into endless emotional battles during the separation process which fuel the litigation and can significantly increase costs to both parties’ detriment.  Remember that what you “feel” is yours may not necessarily be so in the eyes of the law.  Similarly, assuming that you are entitled to «half of everything » just because you were married is not necessarily true either.  To reach a quick settlement and to reduce the stress, some people are tempted to rush through the process of dividing their family property. Others mistakenly believe that dividing everything in half (splitting every asset and every debt in half) is the simplest and fairest way of dividing family property.  Thinking that the settlement was fair they then chose to sign a “kitchen table” agreement (i.e. one drafted by themselves without legal advice) to put the issue behind them.

In reality, dividing your assets and debts, while it does not have to be a complicated, requires a much deeper analysis in most circumstances and should never be accomplished without a deep understanding of the long-term consequences of any given property settlement.  Doing so could result in a settlement that is completely unfair to you and / or which may have very serious financial consequences in the future which you were not aware of.  A separation agreement should never, (and I repeat) never be signed unless you have spent at least one hour with a family lawyer who can explain to you what you are fully entitled to by the law, what you may be leaving on the table and what the long-term financial implications of your decisions will be. Experience has shown that settlements which seemed simple and fair at first glance do not necessarily stand the test of time and you would not want to be eating cat food just because of hasty decisions you made to settle your separation quickly. 

I’ll get the kids for Christmas!

These past few months have been very difficult and emotionally draining for Jill and the children. For this reason, Jill plans to travel to Nova Scotia this year with the children to spend a few weeks with her family over the holidays.  She knows that Jack will not want to spend the Christmas Holidays without the children.  All Christmas dinners have been held at Jack’s parents, a family tradition that has never been broken since the day she met Jack.   This year however, Jill wants to have Christmas dinner with her family.  She is prepared to let Jack have the children with him on New Year’s day and allow him to keep them in his care until school resumes.  As Christmas is just few weeks away, Jill was advised by her friend to immediately begin emergency court proceedings to obtain an order allowing her to travel with the children to Nova Scotia for Christmas.  She wonders if she should….

Most parents have a very limited understanding of the complexities of the family court process.  In addition, many of them have unrealistic expectations with regard to the delays associated with family court proceedings and the powers conferred upon judges to render decisions when dealing with custody and access matters, especially in the interim stage of a separation (that means, before a full trial is conducted). Here are a few things you should know about a family court proceeding:

• Trial - A family court proceeding can take up to two years (sometimes much longer) before it is ready to proceed to trial.  A trial is when all the witnesses testify in court in front of a judge who ultimately renders a final decision in the case.  
• Interim or emergency hearings - Called “motions” or in some provinces “applications”, these hearings are brought often as a court proceeding begins to obtain temporary decisions on issues that require immediate attention, for instance when you need an order to confirm with whom the children will reside, to obtain child support or to force the sale of the family home.  It can take several weeks and even months (depending on where you live in Canada) to have a motion heard by a judge in family court, unless you can show an extreme emergency.  Spending Christmas with your children does not usually qualify as an emergency.  The evidence used for a motion hearing is presented to the judge by way of written statements (called affidavits) – there are no “live” witnesses.  The judge reads the affidavits before the motion hearing takes place.  Since one party’s version of the story is never the same as the other party’s, the judge is often unable to determine which story is the “true” story.  As a result, the judge is often not in the best position to make an order that truly meets your children’s best interests.
• Alternative options - Courts make lousy parents, and you should always try to explore other ways of resolving disputes about parenting issues.  The following options can be arranged relatively quickly: jointly hire a parenting mediator to help you craft an arrangement that meets both parents’ desires, seek the assistance of an experienced social worker who can sit down with all of the family members (including your older children) and facilitate a discussion around the various options.  If a negotiated resolution is not possible, enter into a private arbitration with an experienced and qualified family lawyer who will take the time to hear both parents’ views and concerns and then make a decision on the disputed issue.  These alternatives not only have the benefit of being more expeditious, they are also often much, much cheaper than going to court.

After the Separation - The Need to Plan the Christmas Holidays!

The Christmas holidays are just around the corner and Jack would really like to work out the holiday schedule and travel plans with Jill.   Jack’s mother is hoping that she will be able to give her annual Christmas dinner and she is pressing Jack to get an answer from Jill as soon as possible.  Jill is still very angry at Jack and unreasonable when it comes to making decisions with respect to the children.  Jack fears that she will not let him have the children for  his family’s traditional Christmas dinner, a festivity that the children enjoy very much as they get to play with all their cousins. Jack is anxious and feels that, at least for this year, the existing family traditions should be maintained.   

If, like many other separated families, you must face the prospect of sharing the children with your ex-spouse this year, chances are you will be spending either Christmas or New Year or some very important event without your children.  Planning is the key to help you cope with being either home alone during some of these times and/or without your children.  Here are a few tips you may want to consider to make this holiday season as merry as possible, in the circumstances:

• Talk to your children – Mark the calendar so that they understand the schedule that was agreed upon with your ex-spouse.  You may tell them how much they will be missed when they are with the other parent, however, reassure them that you also have fun plans.  While it is important to be honest with your children about how you feel, they are not responsible for your happiness (or unhappiness).
• Make plans with your children – It is not important what you do or when you do it, as long as you plan to celebrate the holidays in YOUR own special way.  Start a new family tradition that the children will cherish for years.  Children remember true joy, comfort and laughter, not specific days of the week.  Ask for their advice as children always have great ideas.
• Touch base – When your children are with the other parent, arrange to have some kind of contact with them.  A quick phone call or a text message on Christmas day can go a long way.   A contact, no matter how brief, will help the children cope and help ease your own feelings of loneliness.  Remember, you will soon be reunited again.
• Most importantly, make plans for yourself – It does not have to be earth shattering but make sure to plan something out with family and friends during the children’s absence.  Also plan for some time alone to rejuvenate.  Your heart and soul might be aching with pain for not being with your children, but a good laughter might be the cure you need.  Cook a special meal, go to a movie or to a fine restaurant, read a good book, rent a movie, get a massage or a beauty treatment, finish a home project, stay in bed as long as your heart desires, go away for a few days or give some time to a local charity.  What truly matters is that you take time to make plans for yourself!