Fairway Divorce Solutions

In my experience the biggest cause of marriage or relationship failure is a loss of focus.  Relationships follow a very basic pattern: bliss when the relationship is new, followed by a slow deterioration towards blasé or an actual termination of the relationship. The difference between bliss and blasé is focus.  During the blissful times the relationship is all we think about.  It is exciting and top of mind practically all the time. Slowly, and sometimes quickly, we start to shift our focus from the relationship to other things.  This is a natural progression in all we do. The shift in focus mirrors a shift in priorities.  As the relationship becomes less of a priority it becomes blasé and, if the focus is shifted entirely elsewhere, the relationship ends. 

If you want to understand the dynamics of your marriage consider the last time you bought a bicycle.  For the first three weeks after you received that new bicycle you probably went for a ride every day.  Two years after, you probably go for a ride only once or twice per month.  Funny thing is that riding a bicycle is fun no matter how long you have owned the bicycle.  The change is the loss of focus on the bicycle.  If you turn your focus to the bicycle again you will probably start riding the bicycle every day and will have lots of fun doing so.  You will probably be happier and healthier.         

The same can be said about a marriage or any relationship.  If you manage to maintain a constant focus on your marriage, you will probably have a happier marriage.  Focusing on the marriage will actually distract you from the many stresses of a normal life which might otherwise be making you unhappy. 

Not all marriages can be saved not even by the most intense focus.  In such cases the focus must be on the creation of a new relationship which provides the most comfortable circumstance going forward.  Focus is still important because you may have children who will bind you to the other person for many years.  Staying focused on the important issues such as children and assets will keep you from allowing the emotions to guide your decisions. 

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The decision to leave a marriage is never easy and the consequences are always severe. Leaving the marriage will result in hardship but so will staying in the marriage. If you are trying to decide whether to leave a marriage then you are basically choosing between two potential hardships and you must decide which hardship you prefer.

Abuse or Infidelity: If you are in a relationship in which there is regular verbal, physical, or emotional abuse, whether directed at the children or yourself, leaving is probably the best option. You should leave as early as possible and never look back. Abusers do not change. Rebuild your life and that of your children away from the abuser. If infidelity is an issue in your relationship, the decision to leave may not be so easy. You need to decide whether you can live with the infidelity or not. Infidelity rarely happens in isolation so you need to understand that if you stay in the marriage, infidelity will be part of your marriage.If you cannot accept ongoing infidelity, leave, and rebuild your life without infidelity.

Doubt: If you are not leaving because you have some residual doubt, then you may need to spend some time in introspection to identify the unresolved issues. Perhaps you feel that there is still the potential to save the marriage and you want to exhaust that potential. If you leave before resolving the issues forming the basis of your doubt you may have regrets and may take longer to move forward as you reconstruct your life. Take some time and address this doubt and either save your marriage or firm up your resolve to leave.

Anger and Hatred: If you are angry at your spouse or feel hatred towards them, you may want to step back and examine your circumstances. Anger and hatred are not good lubricants for proper decision making.Leaving because of anger or hatred may result in regret. These emotions must be resolve as quickly as possible. It may be that with minor changes in your circumstances these emotions disappear and you may decide that your marriage is worth preserving. Give it time and thought before leaving.

Secondary Issues: If you are thinking about leaving your marriage make sure that the reason for doing so is clear and that your thought process is not affected by the many things in your life that divert your attention. Distraction can be a problem when it prevents someone from focusing on the realities of their marriage. You may be thinking that you are unhappy in your marriage when in fact the unhappiness may have other causes. Think carefully about whether there are issues which may be distracting you from having a better marriage.

Influence: There will always be people who have advice to give you or who otherwise influence you. Be wary of such advice or influence because you are the one who ultimately suffers the consequences of your decision to stay or to leave. Give yourself some space from advice and influence and make sure that the decision you make is your own based on your own assessment of which hardship you prefer: staying or leaving.

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A study of 9,055 people, by Jay Zagorsky a research scientist at Ohio State University's Center for Human Resource Research, found that divorce reduces a person's wealth by about 77 percent compared to a single person who never marries. By contrast, being married almost doubles a person's comparable wealth. For divorcing parties wealth begins to decline as long as 4 years before the divorce is finalized. Even more troubling, Jay Zagorsky says that "divorce causes a decrease in wealth that is larger than just splitting a couple's assets in half". The good news is that wealth begins climbing again as soon as the divorce is completed. Thus, a quick divorce not only shortens the period during which there is a wealth decline but guarantees that wealth starts to recover at the earliest opportunity. "We can't tell from these data the reasons why divorced people have so much less wealth than those who are married, but the results are clear, Zagorsky said. It is interesting to note,that Divorce is an equal opportunity destroyer of wealth and impacts women and men in similar ways.

An interesting article in the Globe and Mail claims that as much as 25-30% of condo sales are made to recently separated or divorced parties. It seems that in addition to the lawyers, Realtors are also big beneficiaries from the dissolution of relationships. The Realtor who sells a new property to a newly formed couple has the opportunity to sell the matrimonial home once the relationship dissolves and then sells a condo to one or both newly separated parties. This trend seems to be well known to the big players in the condo industry, although it may be news to most of us. An interesting extension would be the construction and sale of condos specifically targeted at the separated and divorced market by designing features such as flexible spaces that can accommodate one or more children for access visits but which can then be converted to alternative living space after the access period.

The typical divorce is born out of conflict, so it is not surprising that the divorce process itself is extremely combative and destructive. In many ways the divorce process mirrors the way in which parties reach the decision to divorce such that the years of conflict which a couple may experience before taking the first step to separate and divorce is relived during the contentious and lengthy divorce process. The laws and rules and the lawyers and judges and Courts governing and implementing the divorce process add an additional complexity that often enhances the destruction and suffering. An ever larger number of divorcing parties are realizing that mediation is a useful means by which to bypass the traditional divorce process and achieve a better divorce result.

Basically, mediation can improve the divorce process in the following ways:

1. Faster Result – divorcing parties who choose to meet with a mediator can have a complete resolution of substantially all of the matrimonial points of conflict, including division of property, child custody and access and support issues can within 10 to 20 hours. Taking the lawyers, judges and Court out of the process means that the divorce can be completed in 120 days or less. A traditional divorce can take 2 to 4 years. Using mediation a divorcing couple can start to have a normalized life in 120 days or less. We are so conditioned to the lengthy and painful divorce that it is almost unimaginable that a divorcing party can start focusing on living their new life and start building assets again in a quarter of the time of a traditional divorce.
   
   
2. Save Money – it should be no surprise that if a divorcing couple can hire one mediator and complete their divorce in 120 or less, they will save significant amounts of money in legal costs. As an example, a couple with $1,000,000.00 in assets can have their divorce mediated for as little as $20,000.00. A more traditional divorce would likely cost at least $50,000.00 in legal fees while at the same time extending the time during which the parties must suffer the slings and arrows of a divorce. In a traditional divorce the parties pay more for more time and more suffering. The savings, however, are not limited to legal fees. It is well established that divorcing parties are distracted by the complex and stressful process and as a result earn less and are less able to manage and preserve assets. A divorce that takes 4 years will hamper a divorcing party's ability to earn income and make investments for at least 4 years. Thus, if the process takes 120 days, those parties are back to full productivity without distraction in as little as 120 days.
   
   
3. Control the Process and be Private – two parties who hire a mediator are in control of the process and the mediator guides the parties through the process. All of the discussions between the parties are private and there is no public record. Within the Courts the parties have no control because their case is in the hands of lawyers, judges and the Court. The divorcing party's schedule has the least priority in this system and all decisions are made by strangers. Also, everything that is filed in Court becomes part of a permanent public record accessible to anyone who may be interested. Perhaps one of the most important benefits of the divorcing parties controlling the process may be that the parties are more likely to end the relationship with a positive attitude. Although the marriage may be over, the relationship may remain positive and ultimately the parties may be better able to maintain a positive relationship with their children. It is likely that most divorces will eventually be resolved through mediation rather than the traditional system. It is only rational that divorcing parties will want a more cost effective process that is fast. 

Why would anyone want to spend more on fees only to increased pain and suffering while at the same time making their dispute public?

The Divorce Act mandates that every lawyer who represents a client in a divorce proceeding must discuss with their client the possibility of using mediation to resolve any outstanding issues and to provide the client with the mediation resources they know to be available. This obligation is so important that when legal proceedings are commenced, the lawyer must file in Court a certificate indicating that they have complied with this requirement. 

The relevant sections of the Divorce Act read as follows: Duty of legal adviser 9. (2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.

Certification (3) Every document presented to a court by a barrister, solicitor, lawyer or advocate that formally commences a divorce proceeding shall contain a statement by him or her certifying that he or she has complied with this section.  The intention of the Divorce Act is to encourage parties to negotiate and to enter into negotiated settlements and to use mediation, if necessary, to achieve this goal. By negotiating the divorcing parties have an input into the final result, even when they use a neutral third party as a mediator. 

In Court the decision is entirely in the hands of a stranger (the Judge) and is often unpredictable. There is also a heavy emotional toll paid by both parties when participating in a Court "battle". From a very practical point of view, the costs of a Court Application are far greater than an early negotiated settlement. A very small percentage of divorcing parties have the emotional and financial stamina to drive their conflict to a final trial. In fact, most conflicts are settled along the way to trial, ironically through negotiation and sometimes mediation, but not until the parties have paid a heavy emotional and financial price. Thus, it makes sense to make every effort to settle early in the process and to engage the services of a mediator to attempt to achieve a negotiated settlement prior to engaging the Court.

Even after engaging the services of a lawyer, or when first doing so, parties should ask their lawyer about mediation and should ask to have mediation as part of the divorce process.

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Divorce by many accounts is as destructive as a serious illness and many are now choosing to avoid it by not marrying. But, as the big fat panda said "sometimes one’s destiny is found on the path one takes to avoid it". The harsh reality is that divorce is not the result of a failed marriage; rather, it is a remnant of a failed relationship.  Whether a couple choose to marry or not, the unravelling of a long term relationship is difficult if the parties have children and assets.  The division of those assets combined with the restructuring of the new parenting relationship can turn into a financial and emotional quicksand. 

Ironically, married couples may actually have an advantage at the end of their relationship.  The divorce is now a well mapped domain in which ground rules and benchmarks have developed to make the process, believe it or not, easier and more predictable.  Also, there are many services and professionals to help with the divorce process.  By contrast, the breakup of an unmarried couple is like an adventure into the Sahara desert; the parties often feel alone and the process is entirely unpredictable.  At the end of the day, married or not, the breakup is painful and destructive. 

Making use of services like mediation can significantly speedup the process while reducing the negative effects.

In every conflict over spousal support both parties inevitably reach a point when they consider whether an agreement is better than going to court. Usually that point is not reached by both sides at the same time otherwise conflicts would probably settle quicker. Generally, lawyers and judges would say that an agreement is better than taking the risk of going to Court. 

A Family Court Judge made the analogy that going to court is like getting into the trunk of a random car: you know you are going somewhere but will likely be surprised by the endpoint.

The Attorney General of British Columbia suggests that it is better to “come to a fair agreement on spousal support” rather than go to Court.

The Attorney General web page spells out the disadvantages of going to court as follows: • Lack of control over the results in court; • Cost in terms of money, time and stress; and • Long delays in resolution of conflict.

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Canada has adopted a no-fault divorce regime. This means that you do not need to prove that your spouse did anything that would cause the breakdown of the marriage. In order to get a divorce all that you need to establish is that you have been living separate and apart from your spouse for a period of one year. It does not matter which spouse left the marriage or why.

However, if you are asking for a divorce because of adultery or mental or physical cruelty, you will need to prove whichever you are alleging. The vast majority of divorces in Canada proceed on the basis of the one year separation. Generally adultery or mental or physical cruelty are only relevant for the purpose of shortening the time that the parties need to be apart before a divorce will be granted. It is only in the rarest of cases where these factors affect property distribution and support outcomes.