With a joint custody arrangement, parenting decisions are to be made jointly after discussion as to what is in the children’s best interest. Where the children actually reside remains a separate issue to be settled between the couple, despite any agreement for joint custody. The children may reside, for example, most of the time, with one parent, even though there is a joint custody arrangement in place. It is the residence arrangement that is used to determine who pays child support. Consequently when working out any custody arrangement it is important to discuss not just custody but also where the children are going to reside and for what length of time.

Often family law trials are difficult emotional experiences for parties, even when represented by lawyers. Acting on their own behalf forces people to also deal with unfamiliar rules in surroundings that can be intimidating at the best of times.

Judges and court staff do the best they can to help people who represent themselves. Also constant efforts are being made to simplify legal rules, to make the judicial system easier to work with, for people who are not legally trained.  

More recognition is being given as well to “unbundling” legal services. This means hiring a lawyer to assist in only certain aspects of a family law matter. For example, asking a lawyer for their input at only certain stages of the proceedings, rather than having that lawyer involved from start to finish.

The advantage of “unbundling” is that it can keep the costs down, yet also provide guidance to a party trying to represent themselves.

For example, if a pay raise was kept secret by the paying parent, the application to increase child support might occur years after the increase actually happened. Not surprisingly Courts were concerned about awarding a large lump sum for retroactive support, years after the fact, particularly if the child was an adult by the time the application was made.

The winds of change are starting to blow however. Our Courts are beginning to place a greater emphasis on the paying parent having to disclose increases in income, when such increases occur. It is certainly not an absolute requirement, yet, but the trend seems clear. If you are required to pay child support, and you receive an increase in your income, it makes sense to disclose that increase and adjust the amount you are paying under the Child Support Guidelines. A failure to do so, could risk a large lump sum award, years later. 

It is important to recognize this fact. The lawyer and their client need to deal with it. Many lawyers can and will recommend counselling, or other assistance for their client. Sometimes however the angry party may not be that lawyer’s client.

In such a case, because of the anger, settlement, through mediation, or otherwise, may be very difficult or impossible. Such a situation needs to be recognized and discussed. Not every party to a family law proceeding is reasonable.

You may be involved in such a situation, and yet want to move on with your life. Talk with your lawyer about what has developed but in such circumstances the best option may simply be to proceed to Court. No matter how many fair settlement proposals are made, if one person is angry and unreasonable, it may be impossible to settle. 

Going to Court, in such circumstances, is not a failure to communicate. Instead, it is a recognition that a reasonable, fair settlement, cannot be obtained through negotiation. The time may have come to move forward in the only way possible, through a Court Order. 

The real key to making this type of decision is whether each party is being reasonable as matters proceed. For example, is information about assets and income being disclosed promptly and completely? Are arrangements for such things as access to the children being accomplished with a minimum of fuss? Is financial help being provided in a reasonable amount, without the need for constant requests? Does there seem to be a will, by both spouses, to try and reach a settlement? All of these practical issues will help to determine whether there is a need for court proceedings.

Sometimes only one court application is needed to determine, for example, interim support. Sometimes every step has to be litigated. Sometimes there is no need to go to court at all. There is no one answer that fits every situation. The most important factor however, is usually whether there is a reasonable level of cooperation between parties. If so, court proceedings, and the accompanying costs, can often be avoided.

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Often a client has no control over many of the causes of the delay. Busy courts, overworked lawyers, and delay by the “other side” can all have a negative impact on getting the job done. Nevertheless there are some things a client can do to avoid unnecessary delay.

If a request is made, typically for financial information, it is important to get the requested information promptly. Be organized as well. It will only delay matters if a client gives their lawyer a mass of disorganized invoices, pay slips and income tax returns. Certainly the lawyer or their staff will eventually get everything organized but much time delay (and expense) can be avoided if a client takes responsibility for putting together the financial information in the form requested.

Finally, don’t be afraid to ask for time estimates from your lawyer. If things are not being done within the time estimated, then find out why. Often delay can be reduced or eliminated if there is regular communication between the lawyer and their client so that both know what needs to be done and when.

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For example, if a couple starts living together, each may bring assets into the relationship. One spouse however, may own much more than the other. One spouse might own a house. The couple might start living together in that house. At the same time, the non-owning spouse might, for several months, do a lot of work on that house.

Should the relationship fail, even though lasting only a few months, the non-owning spouse has a potential trust claim, for an interest in that house. There is a solution to this problem, known as a cohabitation agreement, but that will be the subject of another blog.

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What the lawyer means should they give that rather rude reponse, is something quite different. What the lawyer means is that while a separation has occurred not a lot turns on the separation itself, from a legal point of view (from an emotional point of view of course, quite a lot may turn on a separation).

The real issues that the lawyer and client need to talk about are such things as custody, support and asset division. The length of time a couple is separated can be important for calculating grounds for divorce, or entitlement to apply for support, in some cases, but those issues are usually minor in comparison to others the lawyer may want to discuss.

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When you meet with a lawyer, with questions about family law, you should make an effort to discuss what costs you can expect. If a relationship has broken down, particularly a long term one, there may be very significant financial issues to be decided. The amount of potential costs incurred may be small, compared to a result that provides you with financial security.

On the other hand, time can easily be wasted, and legal expenses incurred, over issues that have little to do with bringing matters to a conclusion. It is not easy, but discussing overall costs, planning a budget with those costs in mind, and deciding whether the benefits outweigh the costs, are matters that should be addressed as early as possible in your discussions with your lawyer.

Your relationship with your lawyer, even in the most emotional of family law cases, is always, to a degree, a business one. It is helpful to discuss and settle the terms of that business relationship, at the start.

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It is not unusual for only one party in a relationship to deal with all the day to day financial issues. Consequently, when that relationship breaks down, the other party can be lost when it comes to knowing what their monthly financial needs are. This can lead to unreasonable expections of spousal and child support, either far too high or far too low.

When talking with your lawyer on a family law matter ask about budgeting. Try and have a good grasp of what your monthly financial needs are. Copies of account statements, income tax returns, bank statements, credit card statements and pay stubs, are all helpful. You will probably be asked to complete a financial statement. Try and be realistic when doing so. Try and return that financial statement promptly to your lawyer so he or she can properly advise you on what you can reasonably expect to receive every month, for support.

Clearly understanding your monthly financial situation, as promptly as possible after separation, can avoid unpleasant surprises at a later date.

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