Should I Stay or Should I Go? (Part 1 of 2)

On behalf of Judith Holzman

Many people who come to family law lawyers have one foot out the door, but they haven't made the decision to leave. They have a family with their spouse and, while they're not thrilled about their spouse and claim they are not in love with them, they still have a life together. As a result, I'm often asked - should I stay or should I go?

"What Is The First Step?"

I often suggest to a person who is not sure what they want to do to attempt marriage counseling. At the very least, they are going to have the answer to the two most important questions:

  1. Do I still love the other person?
  2. Do I still like the other person?

If you like someone, you can learn to love them again. If you love them, you can learn to like them again. If the feeling is nothing beyond the fact that you care for them as the parent of your children, the marriage is dead. If you have tried marriage counseling and answered both questions in the negative, then it is time to leave.

"How Do I Leave?"

There are various ways to leave. The best approach if you can still communicate with the other person is to try to come to a resolution based on direct negotiation between counsel, mediation or collaborative law.

Mediation, as you have seen if you have looked at my website, is the process of utilizing a neutral third party to help you work out the issues that need to be resolved, particularly involving custody/access, the matrimonial home(s) and property division, child support and spousal support.

The alternative is to utilize a collaborative approach which requires specially trained family law lawyers who, with their client, sign a collaborative participation agreement not to go to court. If someone decides on court, the lawyers must fire themselves and litigation lawyers are hired. In the collaborative process, the parties to try and brainstorm a resolution through a series of meetings, often utilizing a financial advisor or a parenting specialist to assist the parties. Here, negotiation and production of disclosure is key. This is often referred to as a "team approach" and can be extremely successful to help people trade off for things that are very important to them, resolve financial problems and work out parenting arrangements that are in the best interests of the children.

Although our office tries to utilize direct negotiation, mediation or the collaborative approach whenever possible, this does not mean that our office is afraid to litigate or that we do not "stand tough" for our clients. However, family law is a very complex area and sometimes it can be a worthwhile exercise to step back, a deep breath and try to see both sides as this often leads to equitable and successful resolutions, as well as lower legal fees.

"What If We Can't Communicate?"

It is true that, in some situations, court is the only option because there is a refusal to provide disclosure or there has been violence or addictions that clearly make the situation not only frightening, but dangerous.

In certain cases, one person needs to understand that there are consequences for bad behavior, which necessitates sanctions by the court and quick action by a lawyer. If there is an issue regarding possession of the home, it requires a court order. If there is a refusal to provide financial disclosure, it requires a court order (although an arbitrator can force disclosure because of cost sanctions). If there is a refusal to pay support, ultimately there will be a court order needed.

"How Do I Know I'm Making The Right Decisions?"

Each family law matter is individual to the parties and each person must make their own decision based on their unique circumstances. It is very important when choosing a family law lawyer to ensure that person is accessible, returning phone calls or emails quickly, and knowledgeable enough to answer all your questions. Family law is not a cookie cutter type of law where each situation is the same. The knowledge and experience of a family law practice like ours enables us to help you make these decisions that will inevitably affect the rest of your life.

Next Week: Part 2

Next week, we will discuss the options if you decide to stay.

To learn more, contact my office online or call me at 905-303-1070 (Vaughan), 416-977-3050 (Toronto) or 866-233-0945 (Canada toll free).