People are sometimes hesitant to get a lawyer involved when they are trying to come to an agreement with their partner about a separation or divorce. Unfortunately, people think that by getting lawyers involved they are getting into the situation of those messy divorces that you see on TV, and that lawyers just make trouble. I am here to say that is just not the case.
As I mentioned in my first video, and a number of times since, I think that the kitchen table approach of coming to an agreement is the first choice, if possible. Even in the kitchen table approach, each spouse or partner gets independent legal advice before you sit down to negotiate, discuss or agree on anything. When you come to see a lawyer for independent legal advice, the lawyer is not trying to complicate or poke holes in your ideas about possible agreements you and your spouse have discussed or reached.
It is important to get the independent legal advice before you sit down and talk seriously about agreements with your partner or spouse. I say this because, in my experience, the trust between the spouses is often fragile. So, if you sit down and talk about possible agreements before you have legal information, only to find out that you are entitled to more once you receive independent legal advice, that trust is broken again. This makes it more difficult to reach agreements at the kitchen table.
It is when people come to lawyers too late in the process that we get dubbed as “the bad guy”; but what we are doing when we point out what is missed is making sure that our clients understand what they are agreeing to and what they are entitled to under the law.
It is our job to make sure that you clearly understand the agreement that you make and we do this by:
Lawyers know the questions that you don’t even know to ask. We are not trying to poke holes into your agreement, and we certainly don’t want to start at the beginning again. Instead, we need to make sure that you have thought about everything that you need to think about, and that you really know what you are getting into.
Giving you information and telling you what the law says
It is my job to make sure that you are making an informed choice or decision when signing any separation agreement. That means that I need to give you information about the law, and your rights and responsibilities in relation to your partner or spouse. I need to help you see the full picture, to point out the good, the bad and the ugly. It is my job to let you know what the law says about how property is divided, or that you are entitled to half of their pension. It is my job to tell you about any responsibilities each partner has and point out any risks that I might see. The choice of what to do stays with you — and you can still stick with the agreement that you made. You are the boss, but in order for you to make those choices, I need to do my job and make sure that you have all of the information.
Only speaking to one of you
It can frustrate people when spouses want to come into my office together to talk about the agreement that they came up with, and I say that only one should come in. People can see this as me taking sides, where they were already working together. What I am doing when I say this is actually saving you money. Both partners need to get independent legal advice, from separate lawyers.
When both partners come in and talk to me, I have to play the role of the mediator, and cannot give advice to each party because that would be a conflict of interest for me. That means that after you are both done speaking to me, each partner will have to go to separate lawyers. If you and your partner are truly in a place where you feel like you have an agreement and just want to get to finalized, then you each need to get independent advice separately.
I can also be the one that prepares the separation agreement and represents one of you, and then the other partner or spouse will see a different lawyer to review and receive independent legal advice specific to them, and to sign the agreement. I can even arrange the appointment or point you in the direction of another collaboratively trained lawyer that I work well with. I am not saying that you each need a lawyer because us lawyers are in cahoots with each other or we’re trying to earn more legal fees. It is because each partner or spouse has entitlements, rights and responsibilities and goals specific to them, and so each need a lawyer to inform and advise each spouse of their own situation. A lawyer cannot be in a conflict which means represent both sides or spouses.
Not being your Yes-men
A lawyer would not be doing their job if they just said yes to everything, no questions asked, and no information or advice given. This is what people sometimes think that they want from a lawyer — that we just sign on the dotted line and do not challenge you on anything. This would be negligent, because in that case we would not be doing #1-3 above. And this is important, because the bottom line is that it is our job to help you understand what you are agreeing to. If you understand the law with your rights and responsibilities and you want to do something different that is definitely your prerogative to do so.
Independent legal advice is a vital step in the making of any separation agreement. Independent legal advice makes sure that you don’t agree to something that you’ll regret later after talking to a friend and finding out what their separation looks like, which you didn’t even know was an option.
Also, in the future if you or your partner change your mind about what you agreed to in a separation agreement, and if you both had independent legal advice when you initially signed this agreement, then this separation agreement cannot be easily undone by court. So that means all the hard work of talking to each other and the money you spent paying lawyers would not be lost. If a separation agreement is done without independent legal advice a court may allow the “undoing” of an agreement.
So, by asking lots of questions and giving you information about what both you and your spouse are entitled to while working with only one of you, lawyers are making sure that the work that you put into coming to an agreement is preserved and that the agreement will stand up to the test of time. No one wants to go through this process twice. My advice is to spend the extra time and money to do things properly even with both parties agreeing to everything initially because it will save you a lot of extra cost and stress in the long run.