After 14 years as a divorce lawyer, I’ve heard the same things from clients:
“I like you but don’t want to pay for you.”
“We’d really like to try to do this without lawyers.”
“No offence, but I’d rather spend my money on my children than yours.”
None taken. I’ve learned to have a thick skin and not take it personally.
Don’t get me wrong, I understand the desire to avoid heavy legal fees. Who wouldn’t? I always say spending money on a divorce lawyer is like going to a mechanic. It’s the last thing you want to spend money on and you’re completely vulnerable to them.
I’m not saying every couple needs to spend thousands of dollars on lawyers. Some cases require little to no legal expertise and can be easily settled with a “do-it-yourself” divorce kit or separation agreement you can buy online for a few hundred dollars. In my view, these situations are limited to marriages of very short duration with no children and no property. In more complicated cases, I’ve seen firsthand on a regular basis the damage a person can do when they foolishly decide to forego any legal advice.
Just the other day, I met with a man who signed a separation agreement three years ago, all done without any lawyer involvement. Although he was earning a good income, he agreed to pay child support based on an income amount almost $75,000 more than he was actually earning. At the time he felt he could afford it — that he would continue to earn more each year — and believed that getting lawyers involved would “mess everything up.”
The agreement did not state the income upon which the support was based, how this income was determined, nor provide any any mechanism to change the terms. Although it stated the wife would never seek spousal support, it was woefully lacking in terms of the usual “releases and waivers” that any lawyer worth his or her salt would include.
Now, three years later, he is earning much less than what he was making then. His business has suffered due to the recession and he cannot afford to continue the payments. He is understandably worried about asking to reduce his child support for fear of causing conflict with his former spouse, and he’s concerned she will seek to bring up the possibility of spousal support.
All of this could have been easily avoided with a simple consultation, which would have cost only a few hundred dollars. Even a family lawyer with little experience would have known to set the child support based on his true income, warned him of the consequences of paying more than necessary and included language confirming his right to seek a downwards variation of his payments in the event of a “material change in circumstances.”
On the spousal support issue, standard but important release clauses that force spouses to turn their minds to the consequences of giving up support and the factors in the Divorce Act and Family Law Act would have protected him forever from any re-opening and given him the peace of mind that every support payer seeks.
So the next time you hear someone lawyer-bash, think about how a good one can protect your rights in a big way.
Brahm D. Siegel is a senior partner at Nathens, Siegel LLP and a Certified Specialist in Family Law by the Law Society of Upper Canada. Starting today and every Thursday he will be sharing his thoughts – and advice – on family law issues. If you have a question for Brahm, please email him at bsiegel@nathenssiegel.com and he will try to answer it here.
