These Instructions help you focus on the process (facts), not the problems (disputes/reasons for marriage breakdown). Focus on the process and be seen as more credible and taken more seriously by your lawyer. You will be well organized and prepared. You will reduce the amount of time spent with a lawyer. You will understand and be in control of your Separation and/or Divorce. You will reduce conflict. You will save hundreds, and possibly thousands of dollars. More importantly, you will gain peace of mind and lessen the impact of marriage breakdown, Separation and Divorce on you, your spouse and your children.
If you are at all uncomfortable negotiating any kind of Agreement with your spouse, please keep in mind that any Agreement negotiated with your spouse will be reviewed with a lawyer before it is signed. If on that advice you decide you want changes, the Agreement can then be re-negotiated.
No one can be bound by an Agreement until there has been full disclosure, full appreciation for what is being negotiated (which is usually not apparent until a full Agreement has been drafted and a networth statement for each party created), and independent legal advice received.
I often tell each spouse that I do not represent the best interests of either or both parties. My interest is simply to help the parties with the drafting of an Agreement—which is why they must each take the Agreement to their respective lawyers for review, advice and signing. It is for their protection AND it is for my protection. First, each lawyer will represent their best interests. Secondly, neither party can say that they relied on me in any way for legal advice. I type the Agreement under your direction. I don’t give legal advice. You rely on your lawyers for legal advice. I then incorporate any changes either of you wish, if any, based upon the advice of your lawyers.
We gather the facts (what you acquired in terms of property, assets and debts and how you propose to divide everything); document how you want custody, access and child support worded; and, indicate whether or not there will be spousal support. We discuss the possibility of exemptions. We discuss general procedures to divide property, assets and debts equally (though there may be exceptions were it is not necessary or appropriate to divide equally).
Keep in mind that:
We also discuss situations where parties can negotiate trades—such as a waiver of spousal support and/or child support in consideration of an unequal division of matrimonial property. Any negotiated Agreement, whether equal or not, will be reviewed with each of your lawyers. We discuss the fact that I am relying on the parties to provide complete, full and honest disclosure, that the parties may wish to pursue a more formal evaluation and disclosure process with their lawyers. We also discuss the fact that my services are completely inappropriate in situations where one or both spouses are hiding or disposing of assets and/or income, when the parties have complex situation or when the parties are unable or unwilling to cooperate in a friendly non-adversarial manner.
Lawyers are great at giving advice. But, there are steps that may save time and money that can be made even before you go to a lawyer.
If your disputes are over children, you and your spouse may want to attend the free 6-hour Parenting After Separation Seminar. The facilitators help parents understand how to minimize the impact of Separation on children, and offer general information (rights and responsibilities) about custody, access and child support. If you would like to attend this free seminar, please select the link below for a list of Cities (and telephone numbers) in Alberta that have an in-class seminar:
Alternatively, you may complete the course online by going to this link: pas.albertacourts.ab.ca
There are several very good books that will help you with the process of Separation and Divorce found in your public library or local bookstore. Make sure that Divorce literature applies to Canada, property division applies to the laws of the Province you live in, and the publication date is recent.
Before taking the Agreement to a lawyer for advice and signing, you can each take the Agreement to a Financial Advisor (i.e. Investment Advisor, Chartered Accountant or Divorce Financial Analyst) to determine any financial consequences involving the proposed division (such as capital gains taxes, disposition costs and balancing of risks).
A financial advisor may be extremely important in the following situations:
You can both review your documentation with your financial advisor to ensure disclosure is accurate with respect to any financial accounts the financial planner is aware of. You can also ask if there are any financial considerations that you both ought to consider.
Some lawyers have a financial background and would be appropriate to advise on this. If there are complex financial issues, your lawyer will advise as to whether you should see a financial advisor.
The Family Law Information Centre at the Court House can confirm child support calculations and standard of living tests—all for free, which take into account the incomes of both parties after payment of government source deductions, payment/receipt of spousal support and payment/receipt of child support. Standard of living tests are only applied in certain circumstances.
We also provide you with a copy of these calculations that you can take to your lawyer, along with your Separation Agreement (if we draft if for you) for review and advice.
You can also find the following free online lookups:
You can each take the Agreement to your banker or creditor to ensure that one spouse will qualify to assume a debt if that is the Agreement (assumptions of mortgages are not automatic as they once were—the party keeping the matrimonial home may have to re-qualify unless both spouses agree to remain on the mortgage jointly until one spouse qualifies on their own, obtains a co-signer, or until a set date in the future).
Normally, I would draft the Agreement for both parties. They would then take it to their bank to ensure that the bank will cooperate with the parties’ wishes regarding re-financing. We would then make any relevant changes to the Agreement based upon the bank’s agreement, prior to the parties’ meeting with their lawyers.
Financial TIPS on sale of matrimonial home:
Preparing and following a monthly budget is always important. However, I normally don’t expect people to prepare a budget and then say to their spouse “this is what I need, so this is what I want”. Normally, property is divided fairly and an appropriate amount of child support and spousal support is paid. Then, you learn to live within your means. You don’t usually get more money simply because you want it or pay less because you feel you can’t afford to pay it.
Normally, you get what you are entitled to (or pay what you are required to pay) then learn to live within your means.
This is not legal advice, just my view of things. I mention this because some lawyers spend a lot of time having the couples prepare monthly budgets and I have yet to fully appreciate the value of this timely and expensive exercise, unless:
Curious as to how much child tax credits will increase or how much in GST credits you might qualify for? Though this is not likely to affect the division of things, if you find out that your child tax credits will increase a hundred or two, it might reduce your stress a little. Check here for free online calculators:
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