How to Ensure Fair Division of Assets in a Divorce? Answers to the Thorny Questions Around Dividing Assets in a Divorce

April 24, 2024 Mike MacConnell

Financial issues often emerge as flash points of conflict in separation agreements. Disputes about money can escalate quickly, and if you let them fester, can lead to prolonged court battles and exorbitant legal fees. Unfortunately, the traditional adversarial approach to resolving disputes can add to tension and prolong the process, leaving both parties emotionally and financially drained.

As a family mediator, I frequently advise my clients to enlist the help of a Certified Divorce Financial Analyst (CDFA). They specialize in navigating the intricate financial complexities common in family law cases. Unlike lawyers, who are each required to fight zealously for their client, CDFA's are neutrals, like mediators, who focus on achieving an equitable outcome for both parties. Their hourly rates are almost always lower than lawyers, and are split equally between each client.

Here are just some of the items a CDFA can help with:

· Child support obligations

· Spousal support entitlements

· Valuation of the home and other investments

· Division of workplace pensions

· Tax implications when RRSPs or pensions are transferred

· Treatment options regarding inheritance & family gifts

· Status of assets brought into the relationship

· And many, many more

In all separation agreements, both parties are required to disclose all assets, liabilities, and financial obligations, but they may not trust one another’s disclosures, let alone agree on how to divide them. Without a foundation of trusted facts, disputes over child support, spousal support, and property division can linger unresolved, prolonging the separation process – and the fees - indefinitely. One of the most compelling reasons to engage a CDFA is their ability to determine who owns and owes what amount, according to law. They accomplish this by gathering evidence of each party’s assets and liabilities and entering that information into specially designed spreadsheets and calculators to determine each person’s entitlements and obligations.

All of this is not to suggest that the CDFA is always a one stop guarantee. Depending on your level of conflict and the complexity of your finances, other financial experts can sometimes be required as requested by the CDFA or either of the lawyers. This could include

· Business valuator

· Estate lawyer

· Insurance advisor

· Forensic accountant

· Real estate appraiser

· Pension Specialist

· Tax advisor

In addition to the number crunching, since they are neutral and objective, CDFA's foster an environment of collaboration and cooperation, minimizing conflict and reducing overall expenses. They save time and money in the short term, and by ensuring your separation agreement is accurate and enforceable, their benefits last well into the future.

Ultimately, the decision to enlist the services of a CDFA is an investment in clarity, fairness, and peace of mind. By prioritizing precision and collaboration in resolving financial matters, couples can streamline the separation process and mitigate the emotional and financial toll often associated with divorce proceedings.

ABOUT THE AUTHOR

Mike MacConnell, founder of Reflective Mediation, is an accredited family mediator, conflict coach, educator and author. He is the highest-ranked mediator on Google in the greater Toronto area, with over 180 5-star reviews. To book your free consultation click here.

Mediation Works, Even When You Hate Each Other (The Best Revenge is Saying Goodbye)

March 27, 2024 Mike MacConnell

Are you dreading the drama that comes with divorce? Well, there’s an alternative to airing all your dirty laundry in court or pursuing an equally costly lawyer-led process. It’s called family mediation.

When you're going through a separation or divorce, the last thing you need is to spend your money and your days locked in a bitter feud with your ex. But all too often, that's exactly what happens. You're grieving, hurt, and likely furious at each other. It's understandable; after all, emotions run high during breakups.

But here's the thing, you still have something in common, your desire to save money and protect your children. Dislike doesn’t have to mean duking it out in court. Family mediation offers a non-adversarial process, a breath of fresh air that’s particularly helpful when things feel toxic. A mediator can help facilitate agreement on parenting and financial matters, even when parties are miles apart.

You're likely thinking. "But we hate each other! How on earth are we supposed to come to an agreement?" Well, here’s a surprising secret: hate isn't a deal breaker. Not even close.

Only good faith really matters.

Good faith means you're willing to put aside your animosity to work towards a solution. It means being honest about your finances, keeping the personal attacks at bay, and focusing on finding a resolution that works for you both, and your children.

You don't have to be friendly to make it work. In fact, with the guidance of an experienced mediator, couples who can't stand each other, can come to a successful solution in part because they’re super motivated to make a deal that earn s them their freedom faster.

Take Sarah and Paul, for example. They were locked in a bitter battle over their parenting schedule. She couldn't stand Paul after his infidelity, and he was furious that she frequently criticized him in public. Once they realized their kids were getting caught in the crossfire, they knew something had to change.

They decided to give mediation a shot. With the help of a skilled mediator, they worked around their differences to focus on their children. They came up with a custody arrangement that allowed both to spend quality time parenting, thereby bypassing the courtroom battle and getting the freedom they needed on their own terms, not those of a judge.

Now, don't get me wrong. It isn't easy. It takes restraint and a whole lot of patience, plus the willingness to accept a deal you can live with despite not getting everything you want.

But ask yourself this: what do you want more, the freedom that comes from a signed agreement, or the years-long drama of trying to get even with your ex? If you're ready to put the past behind you and move forward with your life, then mediation might just offer the answer you're looking for.

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Coaching Within Mediation: A Key to Improving Outcomes

June 28, 2023 Mike MacConnell

Mediation is a powerful tool for resolving conflicts and finding mutually beneficial solutions. As a family mediator, I have noticed that incorporating coaching into the mediation process, between sessions, and occasionally within a session, can enhance its effectiveness and help achieve a faster, more positive result.

Private coaching by the mediator isn’t traditionally offered because it risks the mediator/coach being perceived as aligning with one client over the other. I solve that by informing the non-coaching client about it in advance, and asking them to approve or veto the coaching opportunity. In every case I’ve ever had, the non-coaching client gladly agrees. They want the other party to negotiate more effectively.

Let’s explore some reasons why coaching can facilitate the mediation process:

1. Emotional Regulation: Strong emotions often hinder mediation. Perhaps a client is nervous, hesitant and barely participating. Or overly expressive and aggressive. By engaging in coaching between mediation sessions, individuals can explore the impact of their own approach in a safe space. Coaching equips participants with valuable emotional regulation techniques, helping those who are shy to speak up, for example, or those who are overly assertive to calm down, whatever will lead to a better outcome.

2. Communication Skills: One of the primary challenges in mediation is communication breakdown. Misunderstandings, misinterpretations, and ineffective communication can escalate conflicts and prolong the resolution process. With coaching, participants can improve their communication skillsoutside the formal mediation setting. They can learn active listening techniques, develop empathy, and gain a deeper understanding of their own communication styles and patterns. The quiet person can work at being heard and the expressive one to offer more space to the other.

3. Self-Reflection and Clarity: Coaching encourages self-reflection and self- awareness. By reflecting on their own values, needs, and expectations, individuals gain clarity about what they want and can express it more effectively. Coaching helps people identify their priorities, consider alternative perspectives, and explore creative solutions. This increased self-awareness allows individuals to approach mediation with a more focused and constructive mindset.

4. Goal Setting and Action Planning: Coaching sessions offer a structured environment for participants to set clear goals and develop strategies to meet them. Individuals can work collaboratively with their coach to identify actionable steps towards their objectives. By defining clear goals, participants gain a sense of direction and purpose.

5. Strengthening Relationships and Building Trust: With coaching, participants develop a deeper understanding of their own needs, as well as those of the other parties involved. This enhances open listening, which builds empathy and translates into more respectful communication. By promoting respectful interaction, coaching fosters an atmosphere of cooperation which can expedite a resolution.

Integrating coaching into the mediation process can be a game-changer. By providing coaching between mediation sessions on an as-needed basis, I offer participants a way to improve their mediation skills, resulting in faster, more successful outcomes. Building coaching into the process empowers individuals to navigate conflicts effectively and create more sustainable agreements.

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Collaborative Law – A Good Idea with The Right Lawyers

October 30, 2022 Mike MacConnell

I was contacted this week by a couple whose separation I mediated almost two years ago. When we were almost done they moved on to a pair of collaborative lawyers to tie up financial loose ends.

They are asking me now to help them complete that agreement without lawyers. They explained that the two “collaborative lawyers” they hired had made no progress, and barely communicated with them over the intervening two years. The couple is furious, and wants nothing to do with lawyers of any kind.

This case dramatically drove home the truth that just because a lawyer calls themself collaborative does not mean they are non-adversarial, efficient or responsive.

Collaborative family law is a relatively new approach to separation and divorce in Ontario. To quote google: “The goal of collaborative family law (CFL) is to allow parties, in the midst of a divorce or separation, to work collaboratively with each other, their lawyers, and other third-party specialists to reach a mutually acceptable resolution of the issues stemming from the breakdown of their marriage.”

Most importantly, they accomplish this without going to court. In fact, if the collaborative process breaks down and clients do go to court, lawyers who have signed a collaborative agreement are required to resign from the case. This ensures commitment from all participants.

In principle, this is far superior to old style, adversarial courtroom combat. Finding a “mutually acceptable resolution” allows decision-making to reside with the clients, and with their lawyers, rather than handing that power over to a judge.

I work closely on a team with two collaborative lawyers who engage promptly in a manner that is truly collaborative. They communicate regularly with clients and other professionals on the team to ensure that a lasting, comprehensive agreement is reached in a few months. Each lawyer is still obligated to work zealously for the welfare of their client. But they see the bigger picture to consider, including the best interest of children and emotional interests that may be as important to their client as the money. They listen to their client, provide legal advice, then pass the case along to me, as the facilitator, to help the clients reach a settlement within the legal model that is unique to their own situation.

They even offer a flat rate package, so clients know in advance exactly what their costs will be, provided undue conflicts don’t arise.

What’s the bottom line? Should you be seeking a collaborative team?

My advice is “yes IF”.

Yes if you and your Ex are genuinely committed to a peaceful, out of court settlement.

And yes if you get satisfactory answers to these questions before signing on to any collaborative law agreement:

1. Do you offer a flat rate fee? If not, what is your hourly rate?

2. How regularly will you communicate with the other lawyer?

3. How regularly, and by what means, do you communicate with me?

4. Do you accept terms in the agreement I might want that don’t follow your legal advice?

5. Will you include less expensive neutrals in the process, such as a mediator or certified divorce financial expert?

So now I’m back working with the frustrated couple, to help them finalize their agreement.

I have informed them not all lawyers are inefficient or poor communicators. I will advice them to hire new ones to review their settlement, once we complete it. Although a divorce can be obtained without legal advice, they will have much greater protection if they do. Only this time I will make sure I refer them to lawyers who I know can be trusted to complete it promptly and efficiently.

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Finding Resilience: An Attitude of Abundance

September 29, 2022 Mike MacConnell

I come into contact regularly with people in crisis. Tension is extreme and resiliency most needed when their emotional resources are most drained. It might be a parent in the midst of a separation wondering “How will I provide for my children? Am I destined to a life of loneliness?”

The uncertainty can be terrifying. For some it is traumatic, prompting resentment and a bitter feeling that the situation, or maybe life as a whole, is unjust and unfair. But the following quotation from Hamlet happens to be true: “There’s nothing either good or bad but thinking makes it so.” It’s only bad if you believe it to be.

The stories we tell ourselves become self-fulfilling prophecies. If you believe you are a decent person with sufficient resources, you will be more likely to willingly accept hardship and thereby find ways to succeed. Conversely, by focusing on what you lack, you sap yourself of the will to make an effort.

It isn’t about pretending everything’s OK. Resilience is about making the effort to shift your attitude away from despair. What appears in the moment to be an unremitting disaster can in fact be a wake-up call.

My job as a mediator involves coaching you in those vulnerable moments, when you are most overwhelmed and least able to think clearly. I acknowledge, yes, that things are unpleasant. You didn’t want this. But I encourage you to shift your mindset. Resentful anger or despair prompt you to fixate on what’s wrong and on who’s to blame, preventing you from considering the most effective next steps.

In other words, RESILIENCE CAN BE LEARNED. It’s a matter of attitude.

Stephen Covey, in his 1989 bestseller Seven Habits of Highly Effective People coined the notion of “an abundance versus a scarcity mindset”. In the intervening decades, positive psychology and the success of Cognitive Behavioural Therapy have largely confirmed Covey’s view that mental health is to a large extent determined by how we think about life’s struggles.

So seek out abundance. This isn’t magical thinking. You recognize the problem and face it squarely, but direct your attention toward the resources at hand that ARE available, rather than lamenting those that aren’t.

Here are a few additional suggestions about how to convert your conflict into connection and unwanted change into new growth.

List resources available to you, both inside and out.

· See this change as an opportunity to fix what’s wrong with your life.

· Be grateful for what is going well.

· Seek out people who have a buoyant attitude toward life and hardship.

· Accept that resolving conflict can benefit both sides.

An abundance mindset will help you grow from resentment to resilience and from victim to victor.

ABOUT THE AUTHOR

“Best Interest of the Child" Easy to say it - but how to find it?

July 27, 2022 Mike MacConnell

Anyone familiar with Canadian family law has heard the phrase “best interest of the child”. It’s the ONLY criterion a judge can use to decide on disputes between parents. That says a lot. The convenience of the adult doesn’t matter, only the welfare of the child(ren).

In my experience as a family mediator, working with parents getting divorced, this “best interest” principle provides a solid foundation. If adults disagree on any parenting issue, the only argument that works is to explain how your position promotes your child’s best interest.

It is an elegant measuring tool. It banishes all discussion of who is a better spouse, parent or person. Canadian Family Law has been a no fault process since 1968. Instead of judging who was right or wrong in the past it simply seeks the best decisions for the children’s future.

But like many enlightened principles, the devil is in the detail. How do you predict what’s in the child’s best interest? Let’s see how this can play out in key issues.

Should We Divorce?

Does our child fare better if we stay together, or if we separate our homes and financial resources? Contrary to popular belief, divorce can actually be better for children. Child psychologists generally agree that the single greatest predictor of long term mental health issues for children is not whether their parents were divorced, but whether they were exposed to prolonged, unresolved conflict. Cold, silent conflict is as harmful as the loud, hot variety. So the verdict is, if you can’t resolve your ongoing conflict, the best interest of the children may well be to separate.

What Parenting Schedule?

This can be intensely difficult to decide. Women are more often the primary caregiver for very young children, yet mom needs to let go eventually because close bonding with dad is equally important. Shorter blocks of time with each parent work best in the early years, while older children thrive on less shuttling back and forth. In other words, schedules should evolve over time. To do that without conflict, positive communication is essential, which is one main benefit of mediation over court.

Parenting Style – Hers or His?

Both. Mom might be strict and dad more playful. Or dad cooks vegan and mom orders out. If you’re living in separate homes this isn’t your problem. When the kids are with you, do it your way, and give your ex space. Kids benefit from the best of both worlds. Instead of worrying, try having faith in their natural intelligence. In the long run your kids will gravitate toward the parenting style that is most healthy for them.

Who’s the Boss?

In my child protection training I learned to “give the child a voice, but not the choice”. Adults are responsible for decision-making. But decisions truly in the best interest of the child require the adult to be attuned to their changing needs and emotions. That means asking. And listening. And maybe inquiring about the solution they think is best. This begins an early training in thinking through the pros and cons of difficult decisions. Although the final decision is yours, the more you collaborate with the child on arriving at it, the more empowered by it they will be.

I “best interest” principle may not be easy to employ, but it provides a wise guide to our thinking.

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In Praise of Difficulty Light on Other Side of Hardship

June 29, 2022 Mike MacConnell

I had a divorce client - I’ll call him Jake - who was devastated by his wife’s announcement that she wanted a divorce. He told me he felt threatened by the loss of his identity as a family man and feared the inevitable reduction of his assets. In rapid succession, he experienced all the stages of grief: shock, denial, anger, bargaining and depression before finally arriving at acceptance.

He didn’t want the whirlwind of change he found himself facing. He had been comfortable in the marriage. Although it lacked passion, Jake never saw his marriage as broken. It was only in retrospect, after the legal process was over, that he came to recognize the marriage really had been dysfunctional and that his ex had been right. For years, he and his wife had been co=existing, without any real connection or deep intimacy.

My work as a conflict mediator brings me frequently into contact with clients like Jake, people have been thrust into turmoil. But one thing always within their control is their response to change. They can choose to embrace it, learn from it and grow.

For Jake, the period after the divorce was a revelation. By the time he and his wife had completed their Separation Agreement he had begun referring to his old life as his “Rip Van Winkle phase”. He felt like he had been sleepwalking, or under a self-induced spell. He knew he would never have shaken himself awake if his ex hadn’t rung the alarm. Difficult as divorce was, he was glad she prompted him to enter this new phase of his life.

Jake didn’t ask for the marriage to end. But when I checked in with him a year later, he told me his ex’s decision had prompted him to reflect. He felt more engaged, and had taken on a more communicative approach to the relationships he was now in. He was willingly working harder at keeping love alive by being more attentive to his new partner’s needs and more expressive of his own. He regretted that he had to learn it the hard way, and felt sorry for the pain he had caused his ex. I told him I wasn’t sure if there was any other way to grow. That pain is our best and maybe our only teacher.

I’m not suggesting you should ask for difficulty. There’s no need to seek it since difficulty has it’s way of finding you. When it arrives, just challenge the impulse to complain about it. Pivot away from the impulse to complain and direct yourself to become curious. Like coming upon a new exercise machine at the gym, try asking yourself: “What can this do for me? What skill I don’t yet have might this strengthen in me?” An answer will arise.

ABOUT THE AUTHOR

The Modern Divorce Team

March 30, 2022 Mike MacConnell

The cost of an uncontested, out-of-court Separation Agreement is normally unpredictable. Fees routinely range to well beyond $15,000 per person. Our expert team of four collaborative experts has just introduced flat-rate divorce packages ranging from $4,775 to $9700 per person. Moreover, clients who qualify won’t need to pay a penny until the process is over.

The Modern Divorce Team provides a mediator, a financial expert and two lawyers, one who will represent the interests of each spouse. This is all the expertise you need in one place – for much less time and money than the standard divorce solution. We created this option to ease the stress of our clients, who are often grieving the loss of their family dream, fearing an uncertain future for themselves and their children, and feeling very alone.

We help couples reach a legally binding settlement within 6 to 10 months, or less. For clients who qualify, payment can be deferred until the case is settled. This can also include financing the rental of separate living quarters, if needed, while your agreement is being negotiated.

We offer 3 packages:

The Family Package- $19,400 per couple or $9,700 per person + HST*
The Couples Package- $14,650 per couple or $7,325 per person + HST*
The Starter Package- $9,550 per couple or $4,775 per person + HST* (no children, less complex financials)

* We reserve the right to change current pricing.

We can also customize a plan for specific needs, such as owning a business, in addition to offering deferred payment for those who need the extra “wiggle room”.

All of our packages involve a co-ordinated team of 4 divorce specialists:

Two neutrals:

Mike MacConnell, accredited family mediator, your point person, who handles all negotiations. www.reflectivemediation.ca

and

Eva Sachs, divorce financial expert, who gathers and completes joint financial disclosure. www.evasachs.com

Plus two lawyers:

Anna-Marie Musson, collaborative family lawyer, representing and supporting one spouse. www.mlawgroup.ca

and

Ryan Osbourne, collaborative family lawyer, representing and supporting the other spouse. www.osbournecollaborativelaw.com.

Even if you avoid going to court, which is notoriously lengthy and expensive, there are risks to traditional Out-of-Court settlements.

These include:

· If you do it yourself, you will almost certainly lack the full financial disclosures and legal expertise that are required to provide you with full protection;

· Family lawyers charge by the hour, and are trained in an adversarial system. Expenses mount unexpectedly when they quarrel and charge for each interaction;

· The time frame is unpredictable when you hire lawyers or, a mediator, who do not communicate regularly with one another or interact smoothly;

· Family lawyers are not financial specialists. You risk a settlement that doesn’t have the expertise to accurately determine support obligations and equalization of assets.

We are committed to avoiding the tensions that can arise between lawyer and client when the total service costs are open ended. Many lawyers will need their retainers topped up several times during the course of finalizing a divorce. Clients are usually okay with this once or maybe twice, but as the costs escalate over time there can be a loss of goodwill in the relationship

We want to ensure our relationship is pure, secure and transparent at all times

With The Modern Divorce Team as guides, clients are the decision-makers. You come away with the full protection of an expertly crafted Separation Agreement that has been customized to meet the unique needs of your family, now and for the future.

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