Frequently Asked Questions

 

How can I make the divorce process move faster? The amount of time the divorce process takes depends mainly on how complicated your case is. Simple divorce cases can take a few months or even less, but a divorce with complex financial, property, or custody issues usually takes far longer. Usually, your divorce will be final shortly after you and your spouse reach an agreement - or after a judge makes the decisions for you. One way to makes things go more quickly is to cooperate with your spouse, in order to avoid the wasteful conflicts that lead to lengthy court battles. If you and your spouse (and your respective lawyers) can create an agreement that works for both of you, you will save a significant amount of time and money. However, keep in mind that this might require both you and your spouse to make compromises on some issues. Ask yourself whether it's really worth the time and money to take your spouse to court over certain issues between you. If you're determined to "win" against your spouse in every aspect of your divorce, then get ready for a long, costly, drawn-out fight in court. But the more you're willing to work constructively with your spouse, the faster and easier your divorce will be. Whether you're litigating or settling, you can also help your divorce along by preparation and by cooperating with your lawyer. You can avoid unnecessary delays by providing documents and information that your lawyer needs right away and responding immediately to his or her requests. Also make sure that your lawyer prepares you well: get the legal advice you need right at the outset, to prevent you from acting in ways that might result in legal delays or costs. If you have time, it's also a good idea to educate yourself on divorce law in your state. The better informed both you and your lawyer are, the better prepared you both will be - and the smoother your divorce case will go.

 

My spouse and I were considering having one lawyer represent both of us to save time and money. Is this a good idea? Even if you and your spouse are divorcing amicably, you each need to retain separate counsel because you are still at odds in terms of property distribution and custody. A far better solution for more friendly, mutual divorces is mediation or collaborative law. In the former, both spouses work together under a mediator's supervision to come up with a satisfactory divorce agreement. In the latter, both spouses hire collaborative lawyers who work together to devise a divorce agreement that satisfies both parties. Both of these alternatives usually cost less time and money than adversarial divorces. The bottom line is that you don't want your lawyer's services to you to be compromised by his duties to your spouse. Your lawyer is working to get the best outcome for you; he or she can't if there is a loyalty conflict.

 

If you live in a 'common-law marriage,' are you entitled to the same support and property division as if you were legally married? Both the Divorce Act (Canada) and the Family Law Act (Ontario) provide that married spouses are responsible for each other's spousal support on separation in most circumstances when there is need and an ability to pay. There is no minimum time period for which the spouses must be married in order to give rise to a support obligation. For common-law and same-sex partners, the Family Law Act provides that an individual may be responsible for the support of his or her ex-partner if the partners have a child together or if they have cohabited continuously for a period of not less than three years. The Family Law Act requires that the value of property accumulated during marriage, with a few exceptions, shall be divided equally between spouses on separation. This is regardless of whether or not there was an equal contribution to the acquisition of property by the spouses. On the other hand, there is no presumption in law that the property of non-married partners should be divided equally on separation. Property division will depend on each partner's financial contribution to the relationship and in whose name the property was purchased.

 

Which is more appropriate for us - mediation or CFL? Mediation is appropriate for spouses who can negotiate on their own behalf with the help of a neutral third party who does not provide legal advice. They are willing to consult with their lawyers when needed and to take their mediated agreement to their lawyers for legal advice before it is confirmed. CFL is appropriate for those who want to negotiate for themselves, but want their lawyers with them every step of the way to provide legal advice and negotiation support. CFL may also be suitable where the issues are technical or complex, there is a perceived power imbalance between the parties, where there has been past abuse or where there are strong emotions and low trust.

 

I recently came across an advertisement promoting the purchase of a "Will Kit". The ad suggested I could save a lot of money in legal fees, as the kit would enable me to prepare my Will on my own. What would you advise? Don't waste your money and time on the kit. At best, the kit will guide you through only a few of the many issues to be addressed when preparing your Will. Unless you have had extensive legal training in wills and estates, preparing your own Will, even with the assistance of the kit, is very risky. The passing on of everything you have acquired during your lifetime is at stake. To make sure all issues and considerations are adequately addressed in your Will, nothing can replace the value of legal advice and direction provided by a lawyer who practises in wills and estates law.

 

 

 

 

 

 

 

Jay I. Bernholtz

Barrister & Solicitor


Phone: 905 294-9955 905 294-9955

E-mail: info@jiblaw.com

www.jiblaw.com

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