416.368.0700 anne@annefreed.com

FAMILY LAW AND DIVORCE MATTERS ARE 90% EMOTIONAL AND 10% LAW.    © ANNE FREED

Dear Readers,

Welcome to my fall newsletter and blog. I’ve concluded, having practised as a divorce lawyer for 36 years, that family law and divorce matters are 90% emotional and 10% law. Also, when a case is called complex, I believe it’s the emotional part that is the complicating factor, rather than the law.

“WOMAN REJECTS $1BN DIVORCE SETTLEMENT AS JUDGE WARNS TRIAL ISN’T GOING TO BE PLEASANT.”  

I came across the above headline recently on Facebook.  It drew my immediate attention. New Yorker Harry Macklowe, 80, offered his wife Linda, 79, almost half his fortune to settle, but Linda wanted to go to Court. Manhattan Justice Laura Drager warned the couple: “Your personal lives, business assets, everything will be displayed for everyone to see, and… “I am concerned about what your expectations are for what this trial is going to be like. It is not going to be a pleasant experience.”

Linda is believed to have been angry due to Harry’s leaving her for a woman 20 years younger.

This case is a graphic example of my theory that divorce/family law is 90% emotional and 10% law. Hence lies the complexity, and along with that, the cost,

Experts can be retained for complex financial issues: business valuators to value a business, real estate appraisers to value real estate, and accountants to assess self-employment incomes. Divorce lawyers are experts in the law, however often have received no training in emotional dynamics. Yet we must conduct our cases with full awareness and ongoing sensitivity to the constantly changing emotions at play.

The collaborative process recognizes this, and mental health professionals can be retained as part of the multidisciplinary team. However, they are not always retained by the clients. Collaborative and mediation train lawyers to put on a ‘different hat’ and to explore and be aware of the emotional underpinnings of their cases. They must explore the “whys” of their clients’ instructions, rather than simply take instructions.

Even if mental health professionals are retained, family law lawyers must still conduct their cases with a kind of emotional expertise and awareness that is to be distinguished from therapists’ expertise.

Also, legal fees will increase exponentially with the “emotionality” of the case. Examples include:

  • Wife finds out that her husband is having an affair with his secretary. She hires a lawyer stating: “I want to destroy him!” In this case it’s the duty, in my view, of the wife’s lawyer to explore with her the underlying reasons for her instructions and not to simply ask for a huge retainer to carry them out.
  • When a husband can’t let go emotionally of his wife, therefore allowing ongoing delay in his case to the point that Court litigation must be commenced because the legal limitation period is almost up.

An example where legal fees did not escalate is the following:

The parties had had a lengthy common law relationship which had broken down irretrievably. They retained me as their mediator to help them negotiate a separation agreement. Both parties acknowledged that they were hurting emotionally. It was essential that I was always cognizant of this emotional dynamic, as it sometimes was “the elephant in the room.” I used caucusing (i.e. meeting with each party separately), as an effective way of addressing, separately each party’s emotional pain. At the same time, both were determined to be respectful of each other. They worked at resolving the legal issues in as positive and constructive a way possible. As a result, they reached solutions they both could live with. As well, their fees were cost-efficient.

One might erroneously conclude, following from my 90/10 theory, that a therapist and not a lawyer should be retained to help parties resolve their matrimonial matters. The problem with this is, while emotions color and often inform the legal matters, the issues which must be resolved are legal issues, requiring legal expertise. They include the issues of child support, spousal support, marriage contracts (“pre-nups”), distribution of property, etc.

Also, emotion directly impacts on the legal issues. For example, in the case of the wife who says she wants to destroy her husband.  She is legally entitled to spousal support. However, if she destroys her husband financially, she will get nothing!

I will be continuing to write to you about this subject, as it is in my view a phenomenon that needs to be explored in depth. Stay tuned for more to come!

Until next time!

© Anne E. Freed, September 2017

www.annefreed.com

 

HAPPY CANADA DAY! AND HOW TO RE-FRAME YOUR DIVORCE IN POSITIVE TERMS

Dear Readers,

We are deep into the summer holidays and vacations are beginning. Suddenly my vet is going to be away for 3 weeks and I’m feeling desperate about that! Then I realize that no one is indispensable! In fact I want my vet to have a peaceful, restful and fun holidays so that he comes back ready to take maximum care of my beloved pets! In that vein, I want to wish you all a happy, restful and fun July 1 holiday weekend. We all deserve to have vacations and I am sure studies show that people are the better for having had a break from their work stresses and demands. I am working on an article on how to see going to your lawyer, when you have finally made the decision to leave your marriage, as a positive first step to a happy future for you and your children. I spoke with someone the other day who said that once she met with and decided to retain her lawyer, she experienced for the first time a sense of relief in her very stressful matrimonial matter.

Watch for my upcoming blog wherein I will discuss how to re-frame your legal road ahead as a positive step to your new and happy life. This is particularly the case when you choose, if appropriate for you in your situation, a collaborative process or divorce mediation as your forum for resolving your divorce matters. More about that next time.

In the meantime, Happy Canada Day and 150th birthday to our great country! Aren’t you glad that we are Canadians especially at this turbulent time in world politics!

Until next time,

Anne

 

WELCOME TO MY NEW WEBSITE!

Dear Readers

I’m so pleased to announce my new website, hot off the press!   My website designer Steve Smiley, RGD from CatsMedia.ca ( yes that’s really his name!)  and I have designed it to be very user friendly and to have the information that you need at your fingertips.

Happy Reading!

Anne

 

INDEPENDENT LEGAL ADVICE OR “ILA” IN A SEPARATION AGREEMENT – IS THERE A DIFFERENCE?

Dear Friends and Colleagues,

Firstly, Happy New Year! Today’s topic is: “Independent Legal Advice,” commonly referred to as “ILA.” Following are four scenarios which in my view illustrate the common assumptions and mis-assumptions of what ILA means and the huge importance that it has.

I’ll use the words “Independent Legal Advice” to mean that each party retains his/her own lawyer to advise them in the negotiation of a Separation Agreement or Marriage Contract (“Pre-nup”). I’ll use the shortened “ILA” to mean that a party wants “quick and cheap” advice from a lawyer and the lawyer’s signature on the “Certificate of Independent Legal Advice” attached to the Agreement. Is there a difference? The following 4 scenarios* I hope will provide the answer.

Is there a difference? The following 4 scenarios I hope will provide the answer.

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WHAT HAPPENS TO A SPOUSE’S INTEREST IN THE HOME WHEN HE’SHE TRANSFER IT TO HIS/HER SPOUSE’S NAME AND THEN THEY SEPARATE?

Dear Friends and Colleagues,

Welcome to my Newsletter, the Winter issue. I hope you are enjoying the snow and “refreshing” temperatures!

Today’s topic is: What happens to a spouse’s interest in the home when he/she transfers it to his/her spouse’s name and then they separate? This is an important issue which often arises when spouses separate.

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FINANCIAL DISCLOSURE

Dear Friends and Colleagues:

Welcome to the Fall issue of my Newsletter and today’s topic: “Financial Disclosure in negotiating Separation Agreements ( and marriage contracts also!): Why is it necessary?”

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BLOG BEGINNINGS

I firmly believe that, in most cases, court is not the answer in family law when considering separation or divorce.  Whatever process option we choose, I look out to protect the interests of my clients and make sure that they get a proper and fair agreement that stands the test of time even in the most complex and challenging cases.

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