Common mistakes can make a divorce even more stressful

By Tony Poland, LegalMatters Staff • Divorce can be an extremely difficult time so it is important to avoid common mistakes that add stress to the situation, says Toronto family lawyer A. Julia P. Tremain.

Tremain, a partner with Waddell Phillips Professional Corporation, says it is easy to get caught up in the emotion of a marital split and poor judgment could inflame an already volatile dynamic.

“Divorces can present many challenges and it is always a good idea to seek guidance. Do not rely solely on advice from friends or family because every situation is different,” she tells LegalMattersCanada.ca.

Too often, people will act without giving much thought to the consequences, which could be costly in the long run, Tremain says.

“One thing I see all quite often is someone who sends a text or the email in a rage,” she says. “They say things that they shouldn’t and they use language that is inappropriate.”

Heat of the moment

Tremain says in the past, it wasn’t unusual to say something over the telephone in the heat of the moment.

“But unless the call was taped, there was no record of it,” she says. “Now it is captured in text messaging or an email. That’s a big problem because even if you can excuse it away by saying you were angry it is now all there in writing. If it was only a one-off you might be able to blame it on emotion. But it is rare that it is just one time when it comes to texting.”

The other mistake people make in texts or email is threatening punitive action or agreeing to something too hastily.

“Some people tell their ex they are taking the children and they will never see them again. That’s a bad idea,” she says. “You also shouldn’t agree to make concessions without giving them careful consideration.”

For example, a person may agree to forego spousal support in exchange for a quick resolution, then realize later that they gave too much away, Tremain explains.

“Those types of concessions may not necessarily be enforceable. But generally speaking, why would you agree to anything in an email or a text without speaking to a lawyer first and understanding the full impact of your decision?” she asks.

Failing to take stock of what your life will look like after a divorce is another mistake people can make, Tremain says. A couple may agree to equal custody of the children but then one parent finds housing an hour or two away, complicating pickups and drop-offs.

“That can make it difficult to keep a schedule and might not be what’s best for the children,” she says. “However, there is now an expectation and it’s going to be difficult to move back from that. You need to determine what the parenting is going to look like before making promises.”

Avoid emotional attachments

Avoiding sentimental attachments to possessions is also a good idea, Tremain says.

“People can put a lot of value on something that doesn’t necessarily have value and fighting over it can be expensive. It’s one thing to have a family heirloom but if it is furniture you bought 15 years ago, it’s likely not worth the cost of litigation,” she says. “You could buy nice new furniture for the amount you would paying in legal fees to keep it.”

Tremain says people should also keep an open mind when deciding what to do with the matrimonial home, adding it’s not unusual to become attached to a house and the neighbourhood. 

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“But if you are planning to buy your partner out and keep the home, make sure the finances work. You don’t want to overextend yourself,” she says. “You might be better off selling it and buying a smaller place.”

People contemplating divorce need to do some homework, Tremain says.

“It is a good idea to sit down with a lawyer for an hour to get an idea of what the issues might be and how you might resolve them,” she says. “You don’t have to get into the specific situation. It’s just a chance for people to learn about their rights and obligations. I advise them about the process, which could range from mediation, arbitration or court.”

Tremain says it’s not always a good idea just to leave the home unless it is a matter of safety.

“But if you do leave the matrimonial home, make sure you get legal advice in terms of your rights and obligations because both of you have the legal right to possess it,” she says.

Someone moving ahead with a divorce should ensure they have access to all of their financial information and documents on such things as pensions, life insurance policies and investments, Tremain advises.

She says in matters of separation and divorce, couples should do their utmost to reach an agreed settlement.

‘The last resort’

“In my view, court should be a last resort because you’re handing over the authority of a part of your life to a judge,” Tremain says. “Judges are ultimately going to make your decisions if you can’t make them yourself. It’s almost always better for the couple to make these decisions, whether through negotiation or arbitration. 

“It’s not always possible, of course, but you want to reach a settlement everybody can live with,” she adds. “It’s never going to be perfect for everyone, but why give up your autonomy to a judge?”

Tremain says once a decision has been made to get a divorce, parents should work out a strategy to tell their children about what is happening.

“It’s not always possible to do it together but parents should discuss how they are going to approach it,” she says. “Doing it together ensures that both of you can control the narrative.

“It can be difficult because the children are already going to be upset” Tremain adds. “It is important to try to keep the message positive and not assign blame. Just make sure the children know that they are loved.”