Getting separated? More tips on how to handle a separation (PART 2)

Part of The Family Law Coach Series: Keeping Family Court, Separation, and Divorce Costs Low

You’ve thought it through and have now made the decision that you’d like to be out of your marriage or common-law relationship. You have to think hard about the future. It’s important to consider not only how to separate, but also, what steps to take to ensure that you’re prepared so you can be more likely to get your ideal outcome. 

We set out 4 things you should think about before separating in PART 1, here are 4 more things to consider.

1.Watch your social media

This is highly important. Family law lawyers will often go through the social media of the other party to see what damaging things they can find. And too often, people have lots of damaging content available. Clean up your social media and be prepared to change your habits once you separate. Don’t post anything you wouldn’t want your Ex to know or a judge to see. Don’t post pictures identifying places you’ve been to, or of friends you’re associating with once you separate. Don’t say anything, no matter how private you think it will be, that might embarrass you later. Don’t give the other side pictures or statements they can use against you.

Bragging about, or showing, how much fun you had at a party or weekend “away” could be used to show that you’re not a responsible parent and have irresponsible friends. Or that you obviously have more money to spend than you’ve declared. It’s not smart thinking to give the other side material they can use against you. Also, be sure to review posts and tags from your friends.

2. Build your lists

Negotiators talk about your BATNA – your Best Alternative to a Negotiated Agreement.

Your “bottom line” is what you feel you must have in an agreement for it to be acceptable to you. But that may not be realistic. Your BATNA is what you’d end up with if you can’t reach an agreement. If you want to avoid your BATNA, be flexible on your bottom line.

In practical terms that means you may have to give up something in your “bottom line” list because if you don’t, and can’t reach an agreement, you’ll end up worse off.

So take your time. Build 3 lists of things you want:

  1. Your “Wish list”: The things you’d like to have in a perfect world where you get everything you want.
  1. Your “Bottom line list”: The things you really feel you have to have if there is to be a deal.
  1. Your ”BATNA list”: What you’d likely end up with if you can’t reach a deal.

When building each of your lists here are some important factors to think about:

Who gets the kids?

Do you want the kids to be primarily with you? Will insisting on too much drive the other party to go to court? What sort of “deal” gives you enough of what you want so that the other side gets enough to avoid a court fight? If agreeing to joint custody but with you having primary residence satisfies the other party – then consider giving up sole custody and negotiate for an agreement that spells out when the kids are with whom but doesn’t talk about custody.

Who gets what from the house?

It’s easy to go through the house for example and list all of the things you want to take. But will that leave anything for the other side? Will that be a point of contention? Does it make sense to insist on the piano, even though your new home may not have the space for it, or is it worth it to create such a fuss about the TV? There’s generally a way to divide things so you get pretty much most of what you want, and the other party gets pretty much most of what they want. Being greedy or too insistent may just make it impossible to get a deal done. If you’re the one leaving, keep in mind what you’ll really need and forget about the rest. Materials things can be replaced.

What sort of financial arrangement should there be?

Obviously, you want to get as much money and assets as you can. There are Child Support Guidelines for child support, there’s the Spousal Support Advisory Guidelines for spousal support, and there are provincial legislation and common law rights to deal with assets.

But often this can get complicated. Think through what you need and want, and discuss this with a financial advisor or lawyer. Don’t make a deal about money without getting good advice.

And always keep in mind your BATNA list. You’re a winner if you get more than that.

Stay, Take, or Talk?

For some people, the best thing to do is to stay in the home until things are settled. That’s the advice most family law lawyers give to people who consult them before they physically separate. Then you and your partner negotiate over who gets what. This advice applies to whatever it is you want – time with the kids or having them live with you, the amount of support, division of financial assets, and dividing up what’s in the home. Once you leave the home it’s tougher to get some of these things.

For some people, however, negotiating won’t work. They just up and leave. If there’s something they want from the home, they take it. If they want the kids to be with them, they move them out at the same time they move. If there’s money in a joint bank account, they take out their share. The problem with this approach is that it tends to stir up emotional dramas with the other party. And that can complicate matters going forward.

For things in the home, there are times when people draw up lists and choose things alternately. Or the parties draw up two lists that are pretty fair and flip a coin to see who gets to choose which list they want first. Then, usually, there’s a bunch of trading things back and forth.

Others can talk reasonably about what goes and what stays.

Try your best not to fight over things like furniture. There are usually bigger things to fight over.

But giving the subject of who will get what some thought, and how you want to go about it, is something wise to consider when you’re thinking about separating so you’ll have a position to take when the time comes.

As a final note, judges and most lawyers don’t typically like to get involved in disputes over material things. It takes up time from more important concerns and costs a lot of money with no one ever being satisfied. So do your best to figure out what you want and try to settle things as civilly as possible. The key message here is to give this all thought before you separate. Every family’s situation is different, and you want to figure out what’s most workable for you.

4. Have an agenda before talking with your lawyer

Lawyers cost money. Chatting about the weather or the ball game, spending time on either one’s last vacation, or general chit chat takes time. You’ll be charged for that time. So be clear and concise about what you want to discuss with your lawyer.

Create an agenda and bring it with you. Start the session by saying “I’d like to cover these 4 things today. Is there anything else you think we should deal with?” Be flexible. Let the lawyer decide the order of things because sometimes 2 or 3 of the things on your list might be covered at one time. But stay focused. Be polite, and try to be brief.

You’ve thought it through and have now made the decision that you’d like to be out of your marriage or common law relationship. You have to think hard about the future. It’s important to consider not only how to separate, but also, what steps to take to ensure that you’re prepared so you can be more likely to get your ideal outcome. 

At The Family Law Coach we have professional family law lawyers available to provide you with sound advice and legal coaching over the phone, email, or video chat. If you’d like to discuss your separation you can visit our Contact Us page.

For more tips on separating check out: Getting separated? Tips on how to handle a separation (PART 1)