We have all heard the phrase “don’t hire a family law lawyer, they will cost you a fortune and only increase the conflict”. This is generally a well-meaning piece of advice from family or friends who are willing to wade in when a person is heading towards a divorce with horror stories of escalating lawyers’ fees. The truth is that hiring a lawyer often reduces the cost of a separation or divorce and ensures that all parties enter into a settlement with full and informed consent, aware of what they can and cannot negotiate away.
Unlike other professionals dealing with divorces such as mediators, arbitrators and paralegals, lawyers are regulated. In fact, lawyers are currently one of the most regulated professionals in modern society. The Law Society provides oversight with respect to all lawyers in the province and requires that they maintain professional standards at all times. Among other things, lawyers are required to undergo ongoing professional training, ensuring that they are aware of the latest developments in the law. Further, the oversight requires them to act in the best interests of their client and any children involved in a family matter, and to be candid and honest in their representation.
If lawyers fail to meet the strict standards placed on them, they can be professionally sanctioned and even disbarred (no longer allowed to practice as lawyers). This is not true of non-regulated professions. For instance, many people may be surprised to learn that mediators, arbitrators and paralegals are unregulated in Alberta. They are not required to undergo any formal training or meet any minimum standards of competence. While some are excellent and respectable professionals providing these services, the lack of formal oversight means that it can be hard for parties working independently to know what they’re getting into.
Further, only lawyers are able to provide actual legal advice. Paralegals and mediators can provide generic information, but they are restricted from providing actual legal opinions or guidance. Arbitrators are empowered to make binding legal decisions but that does not mean they have received any legal training.
Family law lawyers do not want to escalate fees. In fact, they want to move the matter forward quickly and efficiently. A spouse should not see the other person hiring a lawyer as a sign that the other party is looking for a fight. Quite the contrary, this is an indication that the client wants to move forward in an informed and cost-effective manner, with full knowledge of their rights and entitlements. Once a lawyer has identified all assets and marital property and prepared a parenting plan if necessary, the client can make an informed decision about what their future looks like. These steps are completed much more quickly and effectively by a lawyer rather than the client themself.
At Mincher Koeman, we have invested heavily in technology to reduce the overall costs to litigants and to provide a modern and convenient client experience. Our fact-finding process is done with the help of an electronic questionnaire, which ensures our lawyers have all the relevant information as soon as they meet a client, saving the client thousands of dollars in fees. Regardless of whether you meet with a lawyer or another professional offering divorce services, the same information needs to be gathered. We can do it much more quickly than most while maintaining the highest standards of accuracy.
One of the first things a family lawyer will ask for after a client retains them is full financial disclosure. This can be one of the most emotional issues that parties face as they can feel as though they are losing their financial stability. The reality is that this process is necessary for the lawyer to ensure that both parties are protected and that any separation agreement will stand the test of time. Incomplete disclosure or hidden assets leads to an incomplete and unfair agreement between the parties. If disclosure is not provided adequately, only a lawyer can help you remedy this by attending court and asking the court to order that full disclosure is made. This can include third-party disclosure if a party has outside business interests.
Many people are told by their spouse not to retain a lawyer because “we can sort it out together”. This is usually a phrase used by the person with greater control over all marital assets, who is in a position of power in the relationship and who does not want to relinquish that power. A person who wants a fair agreement would never dissuade their spouse from seeking legal advice that will allow them to make informed decisions.
Going into arbitration without sound legal advice can be a dangerous proposition. Arbitration, while seemingly more casual than litigation, is just as legally binding. If you enter arbitration with an inaccurate financial picture, it is very likely that you will end up with an unfair, yet binding, separation agreement. We have seen a number of clients who have come to us in a panicked state after realizing that their agreement is imbalanced and unfair, and unfortunately, there is little that can be done after the fact.
The Guidelines, with respect to both spousal and child support, are complex from both an interpretation perspective and a calculation perspective. However, many people ask, “why do I need a lawyer to help me work out our child and spousal support calculations when I can do it myself?” We have dedicated a full blog to this issue however, in a nutshell, the inputting of numbers into an online calculator is not the best approach. Understanding the principles behind the Guidelines and how the Guidelines have been interpreted by the courts can often make a substantial difference to a person’s support payments and obligations.
Under the Family Property Act, an agreement that holds itself out as dividing family property is only enforceable if independent and separate lawyers for each party provide a signed Section 38 Acknowledgment. While people are free to draft their own agreements or hire untrained third parties to negotiate and prepare their agreements, at the end of the day, you will still need to retain a lawyer to properly execute the agreement. A lawyer may refuse to sign the agreement if they are of the view that:
Many people use the services of third-party organizations that hold themselves out as a cheaper alternative to a lawyer in order to prepare separation agreements. However, these organizations lack the training and background necessary to ensure that an agreement is fair and accurate. We see many clients who come to us having spent thousands of dollars on one of these services, expecting that we will simply rubber-stamp the agreement for a small charge. They are often surprised when we review the document only to raise a barrage of questions about their understanding of the agreement and a laundry list of comments about the agreement’s weaknesses. The client then realizes that they have just wasted thousands of dollars on a document that we need to fix for them.
In a nutshell, retaining a lawyer early in the process to move your matter forward quickly, and can often result in a cheaper more cost-effective outcome. Becoming fully informed of your rights and obligations from the start will help to avoid unnecessary escalations of emotion or the creation of unfair and unsupportable agreements between the parties.
The family law lawyers at Mincher Koeman are exceptionally experienced with respect to assisting clients facing the breakdown of a relationship. We will work with you to ensure that your voice is represented in any dispute and will make the process as painless and efficient as possible. Contact our office today by calling us at 403-910-3000 or contact us online.
707 7 Ave SW #1300,
Calgary, AB T2P 3H6
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