For those who are embarking on separation or divorce, a key element of reaching a fair Separation Agreement, is the exchange of financial disclosure between the parties. When I mediate my cases, I often work with the parties to facilitate this disclosure, which assists in cost efficiency.
CLIENT TO HERSELF: “Why is my lawyer making me prepare financial disclosure when all I need is a separation agreement?”
CLIENT TO LAWYER: “I know what my husband has and he knows what I have. We’ve agreed on how we’re dividing the assets. Just draft it up so we have a legal separation agreement!”
These are comments often made by clients who have retained lawyers to assist them in negotiating a Separation Agreement. Reasons include:
I (the client) don’t have the time or patience to do this work;
I don’t want to pay for my lawyer’s time in doing this;
This is just a make-work project by the lawyers (after all that’s why they’re all rich, isn’t it!); and
I trust my spouse!
So why is financial disclosure in negotiating separation agreements (and marriage contracts also!), necessary?
The following are the answers:
• The necessity of Informed Consent: One of my clients, who works in the medical field, analogizes this requirement to the written consent – “informed consent” – that a patient must give that he/she has been told of the possible risks before consenting to a surgery. For example, before undergoing eye surgery, the patient must be told of and understand the possible risks of going blind in the surgery. Using this analogy, how can a husband and wife agree on how the assets and debts will be divided or distributed it they don’t know what all the assets and debts are, or their values?
• The Terms of Agreements change once people are informed: As an example, I had a mediation case where, when I met each spouse separately at the outset as is my process when doing mediation, I ascertained that the husband had a pension of many years with his employer. When I met the wife she told me that “This will be the easiest open and shut mediation you have ever done!” When I said “You know he has a pension and you know that is considered an asset under our Ontario law” she said “Yes, but I don’t want any part of it, I don’t care what it’s worth” and that her husband would have a fit if she asked for a share. I then asked her “What if I request an actuarial valuation of his pension – 2 – and it turns out it’s worth 1 million dollars?” Knowing that she could be entitled ( in the absence of any other assets) to half of that value, my client wisely told me to go ahead and have the pension valued. In fact the final point they ended up arguing about, prior to settling all terms of their Separation Agreement, was the pension value. The actuary provided 3 possible values based on 3 possible retirement ages of the husband, and guess which value each spouse argued!
• Ignorance is not bliss when it comes to negotiating a Separation Agreement or a Marriage Contract! It’s easy to agree on things, e.g. “I don’t want his pension,” if one doesn’t know what they’re worth; or that “Each shall keep his/her own assets,” without knowing what they’re worth. In order to make an agreement that will stand the test of time, it must be based on the exchange of clear, thorough and complete financial disclosure, so that each party, when negotiating the terms of the agreement, will make their decisions based on knowledge and facts, i.e. informed consent.
Click here to read the rest of my article (first written in 2013 and still relevant and important today).
Many people come to Family Lawyers asking for a quick and dirty (and cheap!) Separation Agreement. Today’s question is: will such an Agreement be fair to the parties and will it stand the test of time?
I had a client – Mrs. X – who came to me several months after she had signed a (‘quick and dirty’) Separation Agreement with another lawyer. Mrs. X deeply regretted the Agreement she had signed and felt that she had settled for far less than she should have. She told me that she had separated the past fall and had signed the Separation Agreement soon after. Further questioning revealed that – in the interests of getting her Separation Agreement finalized quickly – she had asked her lawyer to take several shortcuts. These shortcuts included: not obtaining a value of the matrimonial home, not requesting a valuation of her spouse’s pension, not requiring Mr. X to provide the required full and detailed financial disclosure, and so on.
It was clear that Mrs. X had not been provided all of the detailed documents necessary so that her lawyer could do the necessary analyses to calculate Mrs. X’s legal entitlements.
It was also clear that Mrs. X had been very worried about legal fees, and hence had limited her previous lawyer’s time/work.
Now, six months later, what was Mrs. X to do? The good news is that – in family matters – a spouse can apply to the Court to set aside a Separation Agreement. However, this is an uphill battle, and the onus will be on Mrs. X to prove the necessary circumstances/elements that the law requires in order to win such an application to the Court.
The difficult part is – in addition to the fact that in Court there are no guarantees of victory – the work that Mrs. X’s new lawyer will have to do will greatly add to her legal fees, as the work will be much more complicated than had Mrs. X allowed her previous lawyer to do the necessary work in the first place.
So, today’s teaching piece is that, if you’ve decided to separate, beware of doing a “quick and dirty” Separation Agreement. While you may succeed in your goal of saving time and legal fees in the immediate present, the risk is that, in doing so, you will have likely limited your lawyer’s time and work to do her due diligence necessary to meet the long-term results you want, i.e. a Separation Agreement that is fair to you, and also that will stand the test of time.
Until next time.
Anne
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Mediation and Arbitration. Anne is also a Certified Specialist in Family Mediation (FDRP Med) and OAFM Accredited Family Mediator (AccFM).
People think they have to do their pre-nup before marriage and it becomes a major pressure cooker amidst all the marriage preparations. In a previous article, I show that pre-nups can also be done after marriage!
Dear Readers, (originally published Jan 16, 2020)
Firstly, Happy New Year! Today’s topic is: Can people negotiate a “pre-nup“ (in Canada it’s called a “Marriage Contract”) or a cohabitation agreement after they’re married or living together, or does it have to be done prior to their marriage date or cohabitation date? The answer is Yes! It will surprise many of you that indeed this can be done post-marriage! To illustrate, I had a case where the party came to see me a few weeks before her marriage, requiring a Marriage Contract to be completed before the wedding date. Everyone “pushed the pedal to the metal” to get this done prior to the marriage. Needless to say, due to the very short time frame, it was extremely stressful for all – including me! The parties ultimately agreed to my recommendation that they postpone the finalizing of the marriage contract until after the wedding. That way they were able to focus on preparing for and enjoying their special day, without the added stress of negotiating a Marriage Contract before their wedding.
As I told my client, a possible downside was that, once parties are married, the incentive to negotiate a marriage contract is lessened. Often it is one party – for example Joe (real names not used here) – who has the income, assets, and perhaps children of a previous relationship – who wants the Marriage Contract more than the other party – Sally. Once the parties are married, Joe can no longer say to Sally: “We can’t marry unless you sign this marriage contract!”
My client insisted to me that she and her fiancé had complete trust in each other and that therefore this would not be an issue for them.
Indeed, there can be benefits to doing a Marriage Contract after the wedding date. In the above example, Joe saying to Sally: “I will only marry you if you sign this marriage contract” – could be construed (at a later date) as getting Sally to sign under pressure. This could be a factor in Sally, at a later date, potentially setting aside the Marriage Contract, which is what Joe doesn’t want!
I had a client who came to see me 14 years after the parties had married, as his wife wanted an Agreement and he was fine with doing it. It was important that I handled his case with great sensitivity and diplomacy, due to the sensitive nature of the circumstances and so as to not interrupt a perfectly fine long-term marriage!
So what’s a good way to negotiate a marriage contract? Mediation can be an excellent process for parties to negotiate their Marriage Contract, whether before or after the marriage. The same applies to negotiating Cohabitation Agreements. When I mediate these Agreements, I am sensitive to the often delicate situation, and employ the mediation skills of reframing, active listening, and empathy, while also dealing with the hard legal issues.
Mediation provides a positive forum which can fulfill both these aspects. This process allows the parties to negotiate a solid and binding Agreement and continue their happy married lives together, with the knowledge that, just in case – given the realities of life today – they each have a protection should things not go as planned.
As always, please feel free to pass my article on to friends or colleagues who are considering taking the big step of marriage or cohabitation, or to those already married and interested in negotiating a Marriage Contract. I’m happy to discuss my mediation services with them.
Until next time!
Anne
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice
Listening to this podcast I reflected on and was struck by the reality that it is rare that one finds a Family Law lawyer or Family Law Mediator who is empathic!
In the 40+ years of my profession, I have observed that there have been a very small number of lawyers and Mediators who have shown empathy in their work. On the other hand, I am pleased to say that Ms. Brown’s and Mr. Grant’s podcast confirmed to me that, indeed, I am empathic in my dealings with people and my profession.
It is a sad fact that, among many lawyers – including Family Law lawyers, Mediators and Arbitrators – empathy is not one of their skills. Instead, surprisingly, lawyers often exhibit poor listening skills (i.e. talk rather than listen to their clients), exhibit traits that include bullying, aggressiveness, ‘holier-than-thou’, braggadocio, competitiveness, insensitiveness, and telling the client what to do, including some lawyers who call themselves collaborative lawyers. This in my view is shocking, especially in Family Law matters.
In my view, Empathy is an essential trait of the good Family Law Lawyer.
Family Law, in my view, is 90% emotional and 10% legal (see my blog at www.annefreed.com/2017/09), and it’s the emotional part that causes the most complications, adversariness, and costs of the Family Law case. For example – using the fictional names “Harry” and “Sally” – Harry had a successful business, and Sally was a stay-at-home mother after the kids grew up and left the home. Sally found out that the husband was having an affair with his secretary and became furious. Sally went to a high-priced lawyer known for “winning” his cases. Sally broke down in tears when she told the lawyer the story. Sally told the lawyer that she wanted to destroy the husband because of what he did. The lawyer – known for ‘winning’ his cases – said okay and requested (and received) a huge retainer to accomplish what Sally wanted. In contrast – had I been the lawyer in this case – I would have listened carefully to Sally, shown empathy to her, and explained to her that by “destroying the husband” would destroy his financial success and thereby destroy her claim for spousal support!
A good family law lawyer must be a good listener. She listens to the clients’ words, their tone, and indeed their physical movements. Of course, this also goes for Mediation. This is necessary to help parties reach their objectives.
Listening to Ms. Brown’s podcast, it confirms what I already know, that, in fact, I am one of a small subset of Family Law lawyers who use empathy in their cases.
This does not mean that using Empathy means these lawyers are “touchy-feely” or cross the line to “therapizing” or “social working” their clients! There is a line that good Lawyers and Mediators know not to cross. However, the Lawyer and Mediator must listen their clients, and exercise Empathy. This will help the lawyer get to the heart of the matter necessary to help the parties reach a settlement that is satisfactory to both parties.
For those of you interested in using Mediation for your Divorce or Separation issues, feel free to email me at anne@annefreed.com to schedule your complimentary touch base with me.
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Mediation and Arbitration. Anne is also a Certified Specialist in Family Mediation (FDRP Med) and OAFM Accredited Family Mediator (AccFM).
Happy Fall! Today’s post is “How to Ensure that You Have a Confidential Divorce.”
Most of you have heard by now about Nicole Kidman’s and Keith Urban’s Divorce. Already, social media is full of speculation about the details of their financial settlement.
Confidentiality is of particular concern for high net worth individuals who don’t want their financial affairs available to the public.
There is a way, dear Readers, of avoiding disclosure of one’s private financial affairs in a Divorce or Common Law Relationship Breakdown. See my Answers below (from my previously published February 27th, 2024 blog):
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Dear Readers,
Happy almost Spring-Time! For today’s topic, I will discuss how to have a Confidential Divorce.
In this regard, it is important that you know that, when one’s matrimonial matter goes to Court, the Court materials including Pleadings, Affidavits and – most importantly – the parties’ Financial Statements and Financial Documents will be in the Court file, and will be available to any members of the public for viewing.
Let’s return to Harry and Sally’s situation. Between them, they possess considerable financial assets, and also debts. Also, they have a complicated financial picture.
There are many processes available to Harry and Sally to negotiate their Separation Agreement and Divorce. It is of utmost importance to each that their financial records remain confidential. There are several processes that offer such Confidentiality. They include the following:
Mediation, and
Mediation/Arbitration (also called/Med/Arb).
We will assume that Harry and Sally have retained lawyers. Harry and Sally have heard from friends about these processes and are interested in utilizing them. They speak to their lawyers and their lawyers are on side. In fact, Judges at the Courts also actively encourage Mediation to be held, outside of the Court – even to happen alongside of the Court process – to try to settle all or some of the issues in the Court matter.
Harry and Sally decide with their lawyers to try a Mediation/Arbitration Process. This is a 2-stage process where the parties engage in private Mediation with their lawyers present, with a Mediator who – as the issues are financial and legal – is a lawyer. If Harry and Sally cannot resolve their issues in the Mediation, then the Mediation process will end and will be replaced by an Arbitration Hearing.
In this, the Mediator will take off her Mediator hat and put on a new hat: her Arbitration hat. The Arbitration will proceed as a Hearing – much like a Court Hearing, with witnesses and in accordance with the Rules of Evidence just like in a Court Process. At the end of the Hearing, the Arbitrator will make the Decisions, and these Decisions will be binding on Harry and Sally just as Court Orders would be.
It is important to note that, in both these processes – Mediation and Med/Arb – Financial Information and Documentation in detail must be produced, in order to have a binding Agreement between Harry and Sally, and not have to look over their shoulders in the future. Harry and Sally must lay all of their financial assets and documents on the Table. Full Financial Disclosure is a fundamental prerequisite to have a lasting and binding Settlement, as Harry and Sally each need to have all the financial information about the other on the table in order to be able to make informed decisions (see my blog on “Financial Disclosure”).
In Mediation, and in Mediation/Arbitration, Harry’s and Sally’s Financial Information will remain Confidential to the parties, their lawyers, and the Mediator.
It has been found that the “threat” of an Arbitration Process – where third parties not Harry and Sally shall make the decisions regarding their lives, often has the effect of the parties settling in the Mediation stage!
Where parties divorcing have high net worths and financial information that they do not want to be available to the public, Confidentiality considerations are especially important.
The one caveat in a Mediation/Arbitration Process is that – if Harry or Sally wishes to appeal the Decision of the Arbitration –the appeal must go before the Court. Once at Court, all the parties’ financial records will be available to the public.
In a Mediation only Process, the Confidentiality will remain.
For further information on these processes, see my blogs as follows:
My practice focus, as a lawyer and mediator with over 35 years experience and expertise, is on acting as a Mediator in a Mediation Process, or as a Mediator/Arbitrator in a Mediation/Arbitration Process. If you are interested in discussing the possibility of retaining my services in either of these processes, feel free to contact me at anne@annefreed.com.
Until next time!
Anne
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice, as well as over 35 years’ experience in the practice of Family Law, Family Mediation and Arbitration. Anne is also a Certified Specialist in Family Mediation (FDRP Med), now changed to OAFM Accredited Family Mediator (Acc.FM).
Jerry and Sue have been married for 21 years. They have 3 children in high school. Jerry is a high-level bank executive and Sue is a high school teacher. Their relationship has deteriorated to the point where they go long periods without speaking to each other – ‘two ships passing in the night’. When they talk it invariably erupts into a shouting match. They both have had enough and have decided to separate.
They’ve heard of a process called Mediation and that it’s a positive way to divorce and much less expensive than Court proceedings. They’ve also heard that Mediation can minimize the fallout effect of separation on the children and help the parties communicate after the divorce.
They’ve also heard that Mediation only works where the parties have good communication to begin with.
Well, Dear Readers, I’m here to tell you that all of the above are correct except the last item. The premise that only spouses who have good communication can mediate their divorce is unrealistic. The primary reason why a marriage deteriorates is because couples don’t or can’t communicate with each other. For example, where one party wants to address issues as they come up and the other party sweeps issues under the rug; this will lead to an inevitable deterioration of the relationship as the pile under the rug becomes a minefield.
If Mediation is only reserved for parties who can communicate with each other, then Mediators would be out of business!
There are many Mediation models. In one model, Jerry and Sue would attend at the Mediation with their lawyers. In another model, Jerry and Sue would attend at the Mediation on their own.
For those of you interested in using Mediation for your Divorce or Cohabitation breakdown issues, press Schedule a Quick Connect to schedule your complimentary meeting with me.
Until next time!
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Family Mediation and Arbitration. Anne also is a Certified Family Law Mediator. In addition, Anne is a Certified Specialist in Family Mediation (FDRP Med) and OAFM Accredited Family Mediator (AccFM).
