There are frequently asked questions that we get from our clients who are going through a divorce or separation matter. We have repeated some of them here and hope they can be of use to you.
So we hope that along with these frequently asked questions there are some helpful answers for you.
The short answer is, no you don't, however . . . .
At the same time, and at the risk of sounding self-serving, we highly recommend that each person obtain independent legal advice in relation to their agreement. We also suggest that you either have a lawyer draft the agreement, or review it in detail.
This way, if the agreement is unfair in any way, or does not follow the law, each party can know about that. The reason why you want to have the agreement be fair is so that it is "worth the paper it is written on".
Unfair agreements, or agreements that do not follow the law get set aside. Getting set aside means that the court determines that it is not valid. Even if your agreement seems fair to you, it is possible it does not appropriately apply the law and it can get set aside. What is the point of having an agreement in the first place if it can get set aside? So, in essence, having a lawyer involved in the process bullet-proofs the agreement you have signed.
When you have a lawyer write out your separation agreement, you are also going to have the agreement be clear. Clarity of agreement is important. Sometimes parties don’t realize how unclear their agreements are and then when they get into a conflict, they see that there are differing ways clauses can be interpreted. So, having a lawyer draft your agreement will make it way better in terms of clarity.
Another one of the frequently asked questions we are asked has to do with finances. A lot of people are really worried that if they use a lawyer it will cost them countless thousands of dollars. Although this is a huge and legitimate concern, hiring a lawyer can cost less than you think.
Believe it or not, for a lot of people hiring a lawyer puts them in a better financial position than they would have been in had they not had the assistance of legal counsel. For example, a person who is not aware of their support entitlements would likely fare better if they sought legal advice. People are often not aware of their entitlements.
For most people, hiring a lawyer is not so much an expense, but an investment in making things go smoother in future.
We like to give our clients a range when they ask how much it will cost to hire a lawyer. A very simple separation agreement where you and your spouse have already worked out the terms relating to parenting, dividing assets and support can cost as little as $2,000 for it all to be fully completed.
Then there can be the other end of the spectrum. We have had rare cases where the fees have been in excess of $100,000. This is, however, unusual. In one particular case I am thinking of, there were millions of dollars in dispute between the parties and they could not agree on anything. They could not even agree as to what the value of the assets were, whether or not they had a pre-nuptual agreement, or even if the husband was actually the father of child they had. In that case, the legal fees mounted.
This is one of the most frequently asked questions we get. The answer is yes, of course, we are willing, able and experienced in court matters.
While our website focuses on resolution, the court process is one of the many tools available to resolve your family law dispute, however, it is just one tool. It is, in our view, better to start with other tools first (like mediation) and then only go to court if necessary.
Sometimes court is necessary. For example, as we write this article, we are preparing for a Supreme Court trial to start week after next.
We say, no way. The Family Law Act starts with the premise that both parents are
guardians. In addition, assuming it is in the best interests of the children,
the courts and legislation want kids to spend as much time with both parents as
possible. It just has to be consistent with their best interests.
So, if you are a Dad, don’t feel like the courts are against you when it comes to the opportunity to parent your kids.
At the same time, where Dads do have a challenge that can seem really unfair is when it comes to their obligation to pay child support and spousal support. With the Federal Child Support Guidelines (these are not guidelines, but instead are really strict rules) and the Spousal Support Advisory Guidelines, the support obligations on the person who is supposed to pay support (often the Dad, but not always), it can make it financially very difficult to manage a household that has enough room for kids, and to pay support obligations. This is an ongoing struggle for many Dads.
Do you have something you want answered? Please let us know.
This article was written by Val Hemminger, a lawyer.
Contact Us at Hemminger Law Group for your no obligation consultation