Everyone knows that if you are separating and divorcing, the most cost effective and quick way to resolve matters is to do it yourself.  As long as you and your spouse can successfully negotiate all of the issues between you, you can get away with using no lawyer if you really want to.  Why don't most people do that?  Even though it is standard to complain about your divorce lawyers fees, everyone does as if they are the first person to discover this.  So what value can or does a lawyer bring to a matrimonial matter?

1. Negotiations

a.    What?

First and foremost you need to reach agreements with your spouse about property division, parenting, support, when and how to proceed with the divorce and your future parenting relationship.  How you go about doing that is your negotiation process.  There are formal processes (court, mediation, collaboration) and informal processes (exchange of letters, sitting down at the kitchen table, exchange of emails).

b.    Can people do it themselves?

Going through a separation and divorce is fraught with emotion.  Sometimes the inability to manage those emotions can be a huge barrier to successful negotiations without a clearly defined process or the assistance of a third party.

c.    How can a lawyer help?

A lawyer has the experience to explain the different negotiation processes to you and help you evaluate which process will work best for you.  Your lawyer can help you by controlling the process that you will use to resolve matters, whether it is the Court process, Mediation, Collaboration or Positional Bargaining.  Beware the lawyer who only tells you about one process.  Once you have chosen your negotiation process, a lawyer can help you navigate through that process and be your most effective.  A lawyer knows where you can get additional assistance (i.e. divorce coach, financial specialist and child specialist) to help you make decisions.  A lawyer will help you understand what disclosure you must provide and what disclosure you are entitled to from your spouse. 

d.    Cost

Lawyers charge primarily based on the time that they spend on a case.  The longer your negotiations take, the higher the cost.  If you are able to sit down with your spouse and resolve matters without the involvement of lawyers, you can save the entire negotiation cost.

Finding a process that works for both you and your spouse is very important.  In all of the process choices, ineffective communication between spouses is the main pitfall.

2. Independent Legal Advice

a.    What is it?

In Alberta, you and your spouse each need to have independent legal advice in order to sign a legally binding Agreement regarding matrimonial property.  Without that independent legal advice, both spouses are at risk for the "informal" agreement to be challenged by the other up to 2 years from the date the divorce becomes final (the date the Certificate of Divorce is granted).

In addition, each spouse will need legal advice relating to matrimonial property, parenting and support.  You may need the legal advice at various stages.  It is a good idea to get general legal advice in your first interview and further legal advice whenever you have questions.  Often your lawyer will not be able to give you specific legal advice about your specific situation until he/she has all of the facts.

b.    Can people do it themselves?

Lay people can find out the legal advice by using the internet.  However, there is no guarantee that what you are reading on the internet is applicable where you live or even

3. The Divorce

In Alberta, the only issues that must accompany the granting of the divorce items are parenting and support.  If you have made your own private agreement regarding matrimonial property, the Court does not require you to disclose it in order to get the divorce.  In order to have a divorce granted, you must meet some minimum jurisdictional requirements, as well as have "grounds".  Many spouses buy divorce kits or get forms on line and do their own divorce. The documents are self- explanatory.  There a waiting periods and certain procedural requirements that you would have to learn if you were doing it yourself.  An experienced divorce lawyer knows this process well and will make this process seamless for you.

4. The Agreement

This is the one item that it is best to leave in the hands of the lawyers.

This is the one item that is best left in the hands of the lawyers. An “Agreement” can bear a number of different “titles”:

- Matrimonial Property Agreement

- Divorce & Property Agreement

- Minutes of Settlement

- Divorce Agreement

- Settlement Agreement

Often the title is dependent on what is in the Agreement. The most common Agreement contains provisions about:

- Disclosure

- Parenting

- Child Support

- Spousal Support

- Matrimonial Property

- Future Dispute Resolution

- Costs

However in some circumstances not all of the topics need to be addressed in an Agreement.

You can buy an Agreement from a “para-legal”. You can get basic draft Agreements online. You can draft your own Agreement. The biggest issue with most of these Agreements is that they are often not updated when there is a change in our laws. In addition, they are often “legally insufficient” for various reasons.

Most lawyers have a draft “precedent” Agreement that they use, however this draft Agreement is only a starting point and on every file, lawyers do unique and specialized drafting for their client. Most lawyers have experienced Legal Assistants who are able to complete the first draft of the Agreement on their own; saving you money.

Advantages to having a lawyer prepare an Agreement:

- Lawyers can do unique drafting for unique circumstances (very few Agreements are simple – most times, divorcing people develop unique answers to their negotiations which requires some careful and experienced drafting)

- Lawyers keep track of changes to the law and regularly amend their precedent Agreements to address these changes

- Lawyers can identify particular legal issues that may arise in your Agreement and can give you specific legal advice about those issues

- Lawyers can identify potential tax issues and send you in the right direction to deal with those issues

- Lawyers can advise how much detail about disclosure needs to be in an Agreement to make it “legally sufficient” or enforceable

- In order for your Agreement about matrimonial property to be legally binding, you MUST have independent legal advice – each Agreement must contain legislated certificates in a very specific form

- It is more likely that an Agreement drafted by a lawyer will be upheld by the Courts if one person fails to follow the terms of the Agreement and enforcement is necessary

Precedents

A handful of Medicine Hat family law lawyers have been meeting for the last 20 years or so to share ideas about our precedent Agreement. Years ago, each law firm had a different precedent Agreement – and often even each lawyer in each firm had his/her own draft precedent. As a result, when I received an Agreement drafted by another law office, it took hours to review it and compare it to my own precedent, and to re-draft where items were missing. This was very costly to our clients.

This group of lawyers (including myself) meets every few years (or when there is a major change in our laws) to review and revise our Agreement. In addition, we update our precedent informally and are constantly scrutinizing and evaluating it. We gladly share our Agreement with other lawyers, as we believe it is a comprehensive Agreement and it is much easier to review another lawyer’s Agreement if they are using our precedent as a starting point.

Example:

A client once brought to me an Agreement that had been drafted by someone who was not a lawyer. The client was advised that they required independent legal advice. The Agreement contained no information about what assets existed and what their approximate values were. It contained no information about the couple’s respective incomes. I could not give independent legal advice based on that Agreement as the Agreement was legally insufficient. The client had paid $700 for the Agreement; which was basically worthless.

Example:

Another client brought me an Agreement they had purchased online. It was purported to have had a lawyer’s input. As I reviewed the Agreement, it became apparent that someone was selling an Agreement that my family law colleagues and I had developed over a number of years. On the face of it, the Agreement was well written – except that it referred to the Intestate Succession Act which had been just replaced by the Wills & Succession Act. The changes to the law regarding death and how that could affect matrimonial property and spousal support were significant.

Example:

A client paid a “para-legal” $750 to draft an Agreement that dealt with spousal support and matrimonial property. The para-legal witnessed the Agreement for both parties. One spouse did not follow through with the terms of the Agreement which stated that he was to pay his wife a certain amount of money after he sold the home. He sold the home, took the money, spent it and later declared bankruptcy. The wife had no recourse against her husband because they did not have independent legal advice when they each signed the Agreement. The husband was essentially “judgment proof” because of his bankruptcy.

SUMMARY:

When you go to a shoe store, you have a good idea what you are looking for. When you go to a lawyer for a divorce, you feel like you end up with a bill and not much else. However, consider which of the service areas identified above that you need.

1. Negotiations – you may have completed your negotiations. If so, you can save a lot in legal fees. Most often, the negotiation process, or the time it takes to reach agreements results in the most legal fees. This is the one area of legal fees that a lawyer cannot predict with any certainty at all. If you have not completed your negotiations, you need to choose a process to help you reach agreements: Mediation, Collaboration, positional bargaining between lawyers and Court are the most used processes.

2. Independent Legal Advice – you require independent legal advice for a matrimonial property agreement to be legally binding and enforceable. You can complete your parenting plan, divorce, child support and spousal support without independent legal advice, but those agreements could be subject to intervention later if you do not each have independent legal advice.

3. Divorce – you can complete the divorce papers yourself. They are available online at no cost. You do not have to have a lawyer to do this but it can be complicated and lawyers know how to simplify the complicated situations. Be aware that the Clerks of the Court and the Judge can reject divorce documents for not complying with our laws or because they are completed incorrectly.

4. Agreement – this is one area where you absolutely need a lawyer to prepare the document. I do not recommend using forms found on the internet or forms from para-legals, but that is my bias. The bottom line is that you get what you pay for.

© Marilyn Herrmann

This information was provided as a courtesy by Niblock & Company LLP for information purposes only and should not be taken as legal advice. You should not rely on, or take or fail to take any action based on this information. If you need legal advice, contact Niblock & Company LLP or a lawyer of your choice to obtain advice that is particular to your situation. The provision of this information does not create a solicitor/client relationship.