Couples entering into a second marriage, especially where children are involved, are preoccupied by the day-to-day challenges they face, like consolidating two households into one, trying to ensure that everyone gets along, divvying up space in a new home and even chores like laundry or cooking. They often overlook the long-term implications of a blended family, and that oversight can be costly, especially given the fact that approximately seventy percent of second marriages end in divorce.

The issues involved in merging families can be more difficult when one or both parties to the marriage are wealthy. In situations where a large amount of money is involved, emotions run high, especially among children one of the parties has from a previous relationship. The concept of the “evil” stepmother or stepfather running off with all of their parent’s money has many children worried about more than just the success of the new relationship.

Particularly for families with a high net worth, legal options can help put minds at ease prior to the marriage. Prenuptial agreements, once hailed as being a harbinger of divorce, are actually a great way to plan for contingencies involved in the end of a second (or third) marriage. These agreements, based upon the full financial disclosure of both parties and drafted to set forth their economic wishes, can be negotiated by the parties and/or their attorneys, allowing for dialogue, give-and-take and explicit instructions for allocating wealth to children of prior relationships as well as to any children who may join the family during this marriage. Premarital agreements can also be invaluable when family heirlooms, real estate or collectibles are involved — this treasured property can be specifically kept outside the scope of any marital property in the event of a divorce.

While there is no one-size-fits-all solution for the financial woes facing every blended family, with communication, honesty and forethought, most conflict can be avoided. If you are preparing to enter into a subsequent marriage and have questions about protecting your property rights through a prenuptial agreement or other method, contact and experienced family law attorney in your area for more information.

The divorce rate has slowed in recent years, but not across all demographics. An unexpected segment of the population is experiencing an uptick in divorces — those who have been married more than 20 years. So-called “gray divorce” is making the news in family law circles as more and more couples decide that after decades of marriage they are ready to start a new life apart from their spouse.

Like most younger couples, those choosing to go their separate ways after 20, 30, 40 years of marriage or more do so because they want new opportunities. They long for new experiences. They are in a rut, are unhappy, feel trapped or figure that since their nest has emptied, it is time to spread their wings. Contrary to popular belief, the majority of gray divorces are not the result of one or more parties having an affair, though a desire to have new and exciting relationships is certainly a contributing factor to the rapid growth in divorces of people of a certain age.

Divorce is, for lack of a better term, easier now than ever before. In recent years the onset of collaborative divorce, mediation and other cooperative methods of resolution have made the process simpler, less adversarial and less expensive. There is also the fact that couples are living longer, and they might, during their time together, grow apart. Another reason why many couples are splitting up after long marriages is that it is “okay” to get a divorce now — the societal stigma or sense of failure once associated with divorce is now largely gone.

Regardless of your age, if you are interested in learning more about a divorce or legal separation, you should contact an experienced family law attorney in your area to learn more about your options.

For more information on divorce and other family law matters, visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

When parents divorce, the Parenting Act of 1987 helps address issues they might face concerning their children. When a couple divorces, there are several different issues that they will face – everything from property division to alimony will come into play and will cause considerable stress on the divorce process. There is not, however, a situation that is more difficult and emotionally stressful than attempting to deal with the issues that pertain to any children that might be involved in the divorce.

For this reason, the Parenting Act of 1987 was officially placed into effect in January of 1988 to help these parents find better ways to work through their issues concerning custody and visitation. Per this document, parents were no longer encouraged to look at custody as a black and white issue, but were rather to look at how each parent could help the child. Residential schedules were thus brought onto the scene where the child could effectively and easily split their time between each parent.

This act also introduced the parenting plan, which is a court-approved plan which is either drawn up by the parents or ordered by the judge if the parents are unable to agree. In this plan, different sections address different issues parents will face with the raising of their child such as residential schedule (where the child will live and what sort of contact they will have with each parent) and the decision making (such as decisions pertaining to health, education and religion). All in all, it is a completely comprehensive document that outlines the way that parents are best able to provide for the child.

By using this functional document, parents are able to encourage communication between each parent and child, allowing for the child to be raised in a healthy and supportive environment that counteracts the negative impact of a separation or divorce.

If you are currently facing a divorce, it is important to keep the best interests of your child first and foremost. The effects of divorce can be absolutely devastating on a child and has the ability to cause life-long challenges that they will constantly be struggling to overcome.

For more information on divorce and other family law matters, visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

From incompatibility to infidelity, there are different reasons that couples decide to divorce. For many, however, money troubles appear to be the root cause of the couples’ problems.

Statistics from the National Marriage Project at the University of Virginia note that spouses who argue about money at least once a week are 30 percent more likely to divorce that couples who have money conflicts one to three times a month. With the current economic climate, money issues understandably take on a different level of significance for many spouses.

Communication may be one of the keys to a healthy marriage. Most couples, however, avoid this practice when it comes to talking about money. According to a recent poll conducted by American Express, ninety-one percent of those surveyed avoided discussing money issues with their spouse or significant other. The survey also indicated that half of all respondents made a purchase that their spouse was against, while thirty percent went so far as to hide purchases from their spouse.

A HarrisInteractive poll from 2005 showed a similar trend. Though ninety-six percent of those surveyed believed it was both partners’ responsibility to help manage the household’s finances, nearly thirty percent had lied to their spouse about money. One in four respondents from the Harris poll said honesty about money was more important that being faithful.

While not communicating about money issues or properly budgeting the family’s money may have been a primary reason for the divorce, it is important to take the steps necessary to live on a successful budget after the divorce is final. Living off of one income, as opposed to two, can be a difficult transition for many people.

Debt from the marriage can also have a lasting effect on each person after divorce. It is important to ensure that any debt is distributed fairly; otherwise, one person can find him or herself shouldering a majority of the debt both parties helped create.

For more information on divorce and other family law matters, visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Following a divorce, similar to the division of property, courts will generally apportion debt according to the type of debt that it can be classified as. This is typically separated into two categories: community debt and separate property debt. For example, if the debt is classified as separate debt, that debt will be assigned to the spouse who incurred it. If the debt is incurred for the benefit of the community, it is classified as a community debt and is generally apportioned to each spouse equally. In a departure from the formulaic nature of the Family Code, the law allows the court discretion to apportion debts in a manor it deems appropriate if there is a situation where the community debts exceed the community assets.

Community debts are generally debts incurred during marriage for the benefit of the community. They are normally divided equally between the spouses. Therefore, if at the time of dissolution the total community debt is $10,000 each spouse is liable for $5000 of that debt.

Although the code does not specifically list debts that benefit the community, purchases of ‘necessaries’ are usually deemed to benefit the community. A ‘necessary’ is a legal term of art that describes items essential to life. Common examples of necessaries are food, clothing, and shelter. Additionally, the law takes into account one’s station in life in determining if the purchase is a necessary or not.

To determine if their client’s debt is a separate debt or a community property debt lawyers will generally look at when the debt occurred. Liabilities that occur before marriage, after a judgment of legal separation, or after a judgment of dissolution of marriage are separate debts. The debt will be assigned to the spouse that incurred the liability without offset of community funds, meaning the debtor-spouse is solely responsible to pay this debt from his or her own funds. But If a debt is incurred after separation for a necessary it is generally apportioned to each spouse equally.

For more information on divorce and other family law matters, visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Divorce is the legal process by which a marriage is legally ended. The court can grant either a “fault” or “no-fault” divorce. An action for divorce is commenced with the filing of a Divorce Complaint in the Court of Common Pleas. In addition to requesting the court to grant a divorce, the complaint may also include counts involving the following issues:

∙ Equitable Distribution (division of marital assets)

∙ Child Custody and Support

∙ Spousal Support / Alimony / Alimony Pendente Lite / Counsel Fees

Most often divorces are granted as no-fault in cases where the parties have irreconcilable differences. This is the quickest and easiest way to get a divorce. Some divorces, however, are granted based on the “fault” of one of the parties. Fault grounds include malicious desertion, adultery, imprisonment and/or indignities. Divorce cases range from the simple and uncontested to the complex.

The good news is that you may complete the entire divorce process without ever having to go to court. Often times each party will retain the services of an attorney and the attorneys will exchange information and negotiate a settlement of all issues in your case. This settlement then becomes a written court order and your case is completed. Other times the couple getting divorced has already agreed on what they want to do before ever seeing the lawyer. In this situation the lawyer sees to it that the proper paperwork is processed according to the rules of the court and makes sure that you will not have any problems in the future. In all cases an attorney is necessary to ensure that you are treated fairly and that your case is handled properly so that you will not have future problems.

Because a lot of people are using the courts, the process is backed up and takes a long time - months and even years. It can be expensive, in terms of time and dollars and can be very stressful. I think court should be a last resort in divorce and family law cases. An experienced trial lawyer, however, will not hesitate to take a matter to court and vigorously assert your rights when necessary.

Family law issues are especially difficult because their repercussions can last a lifetime. The way a divorce is handled not only affects today, but will affect your personal and financial life in the future. The terms of a child custody agreement will help shape the relationship you have with your children — a relationship that will last a lifetime. The terms of a divorce settlement will effect your financial future and that of your children.

For more information on divorce and other family law matters, visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

A farmer walks into a lawyer’s office. “May I help you,” asks the lawyer.
“Yeah,” replies the farmer. “I want to get one of those divorces.”
The lawyer says: “Do you have any grounds?”
The farmer says: “Yes. I got about 140 acres.”
“No, no.” Says the lawyer. “Do you have a case?”
“Oh, a Case,” replies the farmer. “No, but I have a John Deere.”
“You don’t understand,” says the lawyer. “Do you have a grudge?”
“Yeah,” says the farmer. “That’s where I park my John Deere.”
“Listen,” says the lawyer. “Do you have a suit?”
“Yes, sir,” replies the farmer. “And I wear it to church every Sunday.”
“Look, sir,” says the lawyer. “Does your wife beat you up or anything?”
“Nope,” replies the farmer. “We both get up at 4:30.”
Finally the lawyer says: “Okay. WHY do you want a divorce?”
“Oh,” says the farmer. “Because she feels I can never seem to have a meaningful conversation with her.”

Divorce has been defined as the:
“… legal separation of man and wife, effected either by the judgement or decree of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties”.

The Canadian constitution allows only the federal government to set divorce law. Canada has a “renovated” Divorce Act, which became law in 1968. This new law added to the requirement to show physical cruelty, mental cruelty or adultery and now allows for a divorce if the husband and wife have been separated for at least one year. This “no-fault” divorce means that most divorce applications to the courts are no longer contested. The parties usually agree on the divorce and other things like child custody and support. This eliminates the need for a formal court hearing where both parties testify and ask for different things (not to mention the consequent legal fees required for legal representation in court). You can even buy a kit in some bookstores that allows you to complete your divorce without a lawyer.

The claim for support is known as corollary relief and may be for the spouse and/or the children (claims for custody are also corollary relief claims). If corollary relief is requested, you would be well advised to prepare a financial statement which sets out your family’s monthly expenses in detail.

The judge that will ultimately grant the divorce has an obligation to ensure that adequate arrangements have been made for the support of any children of the marriage. That is why the petition must answer so many questions: all the possible questions that a judge might ask. Otherwise, the petition could be rejected or the parties could be summoned to an open and public court hearing.

Sometimes, two claims or petitions are filed to end the same marriage, each by one of the spouses (a person is allowed to bring their divorce petition anywhere in Canada provided they have been living in the province where they want to file their petition, for at least a year). Where two petitions are filed, it is the court which was the first to receive the petition that supersedes the later one.

Some jurisdictions also allow for penalties in costs where adultery can be proven, attracting certain litigants to these avenues and perpetuating the archaic venomous approach to these deep, personal disputes.There is a fee for filing a claim or petition, generally in the area of $100 to $300 depending on the rules of the court in your community.

The Divorce Act requires the court to verify whether there appears to be any possibility of reconciliation between the parties. The court can even ask a marriage counselor to attempt to forge a reconciliation. But judges don’t flog dead horses and it is quite rare to see a judge interfere once a formal divorce petition has been filed.

If the application is contested, a hearing is scheduled and both parties are cross-examined by each other or their lawyers in court. This rarely happens; statistics show that only 1 in 20 divorce claims actually end up being debated in court. If your application is contested and you are in need of support immediately, you can ask the court to hear you on an urgent basis and issue a temporary decision giving you interim custody or support. A court decision results and within 31 days of that decision, the parties are considered divorced and free to re-marry.

For more information on divorce law in Canada and child custody/support, visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Canada, like many other nations, is struggling to find a cheaper and gentler way to break up a family without shattering it. Starting in April 2001, nearly all divorcing couples in Britain were required to participate in mandatory mediation before a judge hears their case. In Australia, the government has funded a $200-million nationwide network of family relationship centres that counsel to and mediate for separating couples - especially parents - free of charge. Some experts continue to make the case for treating divorce like a labour-relations matter, to be heard before a similarly styled tribunal.

Unhappy Canadian couples simply stuck it out before the 1960s, when divorce, in most provinces, required the messy business of proving one’s spouses had cheated. The law was more onerous for wives, who also had to prove incestuous adultery, rape, sodomy, bestiality, bigamy, or adultery coupled with cruelty or desertion. Despite a steady uptick after the Second World War, divorce was rare - in 1961, there were about 6,500. Seven years later, Ottawa created the country’s first federal divorce law, both expanding the grounds for divorce and making them gender-neutral - in one year, divorce rates more than doubled, and kept rising. In 1985, when the government brought in the current no-fault divorce, rates jumped again.

The adversarial legal system was not designed to deal with bitter spouses, desperate parents or emotion-fraught circumstances that might be complicated by addiction, debt problems or mental-health issues. The result: cases that drag on, files that get longer, an atmosphere that gets ever more nasty. “As long as lawyers and judges run the show, it will stay the same as it is now”, says Toronto lawyer Michael Cochrane. Fellow Toronto lawyer, Judith Huddart agrees that “people might come to their senses sooner if they were better educated about the costs and risks of divorce - long before their first court appearance.” A comprehensive and mandatory education program would expose them to other options, such as collaborative law, in which lawyers work together on a settlement. And it would spell out what a hostile divorce does to their kids, as well as their bank accounts.

For more information on family law reform and divorce, visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

In the Globe And Mail on Saturday, March 26, 2011 there was an article published by justice reporter, Kirk Makin. He honors Chief Justice Warren Winkler as “one of Canada’s best hopes for family-law reform in Ontario.” Winkler publicly condemns the rules of the justice system. “At a certain point, let’s not adjust any more,” he says. “This has been studied to death. We have to sit down with a white piece of paper and redesign the system. It has to be made cheaper, faster and simpler, without convoluted rules. It’s the hours that are the killer. The family court rules look like a Boeing manual for an airplane.”

As stated by Makin, “Inevitably, cases that move through the system faster become simpler, since there isn’t time for as many motions. A few years ago, [Winkler] designed a process that slashed the Toronto civil-case wait-list.”

In response, Winkler announced, “We went from waiting 37 months to a trial to pretty much having one whenever you were ready. As soon as you have a courtroom with the lights on, the settlement rate skyrockets. As soon as the trial date is a couple of weeks away or a month away instead of three years from now, the motions all go away. I used to say: ‘You can have an adjournment if you die or if you promise to. But otherwise, I’m not adjourning this case.’ ”

According to Makin, Martha McCarthy, a veteran Toronto family lawyer, said her bar’s main reservation about what Winkler initially advocated was his emphasis on mandatory mediation - a process that can put domestic-abuse victims across the table from their abusers in a mediator’s office. To further quote Makin, “bar leaders met with Chief Justice Winkler and found him willing to modify his proposal from mandatory to “presumptive” mediation, in which judges can take suitable cases and home in on particular areas in which to create a peaceful resolution.”

Winkler is also keen on the widespread creation of unified courts that would bring aspects of federal jurisdiction, such as divorce, and provincial procedures, for instance, access and custody; division of assets, under one roof. “People wouldn’t be running from one court to the other,” Ms. McCarthy said, approvingly. “We would have specialized judges.”

Speaking about fixing the field of family law, Winkler concludes, “This is an area that cries out for change, but it just needs resolve. If legislators pass the laws, rules will be made to apply that law. Then, court administrators can administrate those rules. Bingo, bango, bongo, it all trickles down.”

For more information on family law reform, visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Attempts to reform the family law courts have created a patchwork of methods that vary widely from region to region. One key difference lies in the adoption of the unified family-court model, where a single judge, appointed jointly by the federal and provincial governments, deals with most family-court matters under one roof. Saskatchewan, Manitoba, New Brunswick and Newfoundland have such courts. British Columbia, Alberta, Ontario and Nova Scotia, however, do not, and they lean heavily on generalist judges. There remains several family-court idiosyncrasies across the country.

Ontario, like Alberta, has embraced “judicial dispute resolution,” a process whereby judges try to settle cases through conferences with the parties. Some experts are critical of the province’s failure to implement a unified family-law system. “If you’re not going to run a province-wide, unified court system, you have severely limited your options,” Dalhousie University law professor Rollie Thompson said. “In a generalist court, family law just gets submerged.”

Nick Bala, a family-law expert at Queen’s University, agreed. He said the family bar in Toronto, for example, has steered more and more cases toward private mediation and arbitration in an attempt to settle matters faster and more inexpensively.

British Columbia has also recently adopted a new set of family-law rules to streamline procedures and encourage the resolution of cases through forms of mediation. They are innovative pioneers in trying to get things out of courts,” Prof. Thompson said. “What we need everywhere are simpler rules and procedures. Rules have a tendency to be written for the benefit of judges; to make their lives better. But the more you create rules, the more you impose costs on people who can’t afford them.”

“We can’t afford to continue with the model that we now have with different judges dealing with cases,” Prof. Bala said. “It’s inefficient for the parties. It’s inefficient for legal aid. It’s inefficient for the justice system.”

For more information on divorce… the Canadian way and the family-court system visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer