Divorce: Understanding the Process

Until you are at the start, middle or end of your divorce there is little in one’s everyday day to day happenings that relates to the process of getting a divorce. One would think that if 2 people have decided to end their union it would be simple, share the kids (50-50), divide the assets (50-50), and decide who stays in the matrimonial home (or sell and split the proceeds).

In a perfect world, this can happen. If 2 consenting adults who are well adjusted, without any mental health issues, separate and they both love and adore their children more than their animosity towards each other then this formula works.

The reality is that approximately 50% of marriages (on average 50% of the population over the age of 15 are married based on current numbers )end in divorce and of those at least 50% (conservatively) retain counsel. There is the 10% (that number has been floating around) who are labelled as “high conflict. Stats Canada hasn’t recalculated the numbers, or published numbers since 2008, so its hard to gauge especially when common law and same sex unions (the courts have been forced to create new laws in this area) are on the rise. Canada has a population of approximately 36 million…at 25% (divorcing couples) that is somewhere about 9 million files processing in the family court system and 4.5 million files represented by counsel.

In 2011 the Canadian Lawyers legal fee’s survey published that contested proceedings range from $7,208.00 to $74,122.00 with the average set at $12,875.00.
Uncontested in the range of $2,500 (published 2015) and a 2 day trial $50,000.00.

The costs that I have seen are more likely to run between $15,000.00 – $100,000.00 per person and take an average of 6 months to 3 years to resolve (if your lucky). The higher conflict matters, a stunning 8-10 years.

Why does it take so long, why does it cost so much? The process of divorce starts when you begin interviewing with lawyers. If your ex hasn’t contacted 100’s of lawyers already (yes this happens and creates a “conflict of interest”)typically it takes 4 weeks. Intake of your backstory and preparing your Application (if you are commencing proceedings) or responding to an Application, bank on 6-8 weeks. Waiting for a response to the Application another 4 weeks, responding to that (if you are the Applicant) another 2 weeks and setting a date for your 1st case conference (mandatory so that a judge may weigh in on your matter on each parties merits) to be heard another 8-10 weeks. The cost to each party to just prepare and file and case conference, between $5,000.00 to $10,000.00 depending on the complexity of issues to be argued.

And argue they will. Your counsel is being paid to argue. The family court proceedings are in place to determine who is the winner and who is the loser. Certainly the courts make conciliation possible, they do not want your matter and most “reasonable” people never make it to trial, only about 10%.

Unfortunately the average is pretty low on resolution prior to or just after your first Motion date. Files can reach several Motions, as most are short Motions (under an hour in court) in contemplation of “narrowing the issues” or longer Motions which run several hours and cost an average of $15,000.00.

Usually at this point you have been advised to go to private mediation/arbitration ($5,000.00 retainer shared and $300.00 minimum an hour thereafter) and likely you have retained a Parenting Coordinator (if you have children) who will do an assessment (closed mediation so all intake can not be used in court proceedings) to set out things like access, exchanges, special events and even referee the Tupperware wars($3,000.00 to $5,000.00 retainer) and then retaining an acting Parenting Coordinator (open mediation another $3,000.00 retainer and then billed hourly $250.00 an hour).

All of these processes are running concurrently. This is also assuming that there have not been charges of domestic violence (nifty trick to Ad Hoc the children, home, custody and finances) which takes about 7 months through the criminal courts and 3rd party child protection agencies. Chances are that you will need to return to family court on a Motion to determine if an assessment (section 30) is necessary (6-18 months) to determine who is the “better” parent and that runs easily between $15,000.00-$30,000.00.

Now consider your emotional and spiritual investments. You don’t wake up one morning and say “Hey, todays the day I want a divorce”. It may be safe to say that the unravelling of your union has been months or even years in the making. The next investment is deciding to actually end your marriage and dollars to donuts you have spent considerable time on deliberation. If your matter becomes high conflict, at the end you will have been divorcing for longer than you had been married, safe to say you are the 15 year veteran Practice Wife (not including the years you were actually married).

What happens in your divorce can be entirely managed, even orchestrated by you, by way of educating yourself. On the rise is the new breed of Self Represented Litigants (the other 4.5 million files floating around the Canadian court system). The SRL, as commonly referred to, succeeds by being smart, patient, focused and determined. They go from reading cookbooks to reading Canlii (resource of line cases), they ask questions, they meticulously soul search and govern their actions, inherently set out to not lose control of their own matter. The SRL does not want to live under a microscope and they want to maintain their parental rights. They want to humanize the reality of the divorce factory.

As this is a blog, and hopefully one that is read, your comments are ecstatically welcome. However, and due to privacy, some readers may not want to post their questions or comments. Please know that your comments and questions can be emailed to practicewife2017@gmail.com.

If you want to know more about how to succeed as a Self Represented Litigant, blog back or email.

Tomorrow’s blog, “Getting Screwed but only when you want to”.

Best,
Alexandra

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