With apologies to the Glimmer Twins (I mean, seriously, can you believe that Bill Wymnan is 80 years old this year??!! – and Mick, Keith and the boys are still on tour, trying to pay for Mick’s babies…..), I need to rant and rave about how resolutions of matrimonial disputes need to happen sooner than later, and how lawyers (and reluctant ex spouses) who take months and years to painfully crawl their way to a simple, basic solution, which should have come within weeks, are only making the bad situation significantly worse. Thus, my partial plagiarism of the Stones classic, Time Is On My Side.
Of the things I have learned after 30 years in the litigation trade – much of it fighting family law cases across the province – is that time is NOT on your sided when it comes to resolving your separation – whether by way of a separation agreement or a court Order.
Unlike fine French wine, your chances of resolving your separation quickly, cheaply, and with the least amount of acrimony do not improve with age. Think of your festering separation issues as more like a cheese (or your weird, reclusive uncle Phil) – age just makes them mouldier, smellier, fuzzier, and stinkier.
Yes, when people first separate, there tends to be a lot of emotional upheaval. That, however, does not get better with time unless the issues of custody, support, and property division get dealt with. I’m no doctor (tried to play it once or twice), but I have never seen a wound heal when the chunk of debris is still sticking in the skin. First you need to pull it out, then clean it, then it heals.
As time drags on without matrimonial issues being resolved, they fester. Idle minds, being the devil’s workshop (yes, Hillary, we know you have been planning since 2000, but for God’s sake, at least show some integrity and dump Bill before he gets near the firefly girls), the passage of time causes separated spouses to ponder more on how they can extract more flesh. Then, to make matters worse, family and friends start to whisper in your ear (or your exes’) about what they think you should get. Remember those annoying people at your wedding……….they will be a real pain in the tukus in your separation.
To quote Larry the Cable Guy, you need to Get Er Done! And it’s rather simple, really.
Generally speaking, the essential exchange of financial documentation on the average family law file (which is most of you unless you have significant business interests that require valuation), should take place within a maximum of two weeks. Anything longer is simply because someone is dragging their feet. Once the financial information is exchanged, there should be an exchange of proposals on resolution. Your lawyer should clearly set out to the other party what you want. This should happen within days of the information being exchanged. If there is no response from the other side within a few days, someone is asleep at the switch (or deliberately wants to procrastinate).
If the two of you are still apart, then have your lawyer arrange a without prejudice meeting between the two clients and the two lawyers. Yeah, yeah – some of you can’t stand to sit in the same room with other…….well, reality check, you will sit together if you can’t work it out. You will sit together in a mandatory case conference, in a mandatory settlement conference, and in a trial. The only difference is that by the time you go through all of those hoops in the court process, you will have spent significant shekels in legal fees. If your lawyer won’t meet informally with the other side or pick up the phone and have a good discussion with the other lawyer, you have to wonder how then plan to fare in a hotly contested trial.
The reality of the court process prior to trial is that a judge and the Family Law Rules will simply force you and your ex (and your lawyers) to do what any experienced lawyer should tell you to do voluntarily as soon as your lawyer opens your file – make full disclosure, put your position on settlement in writing, and meet in an off-the-record meeting, and try to settle this thing before it has a birthday. New flash – your kids should have birthdays – your family law or divorce case should have not.
If things are not moving, get your Application issued and served on the other side. You can generally have a case conference (first meeting with a Judge to determine what is being fought about and move the case forward) within weeks. In urgent cases, dates can often be had in less than 2 weeks. Urgent motions can also be brought before a case conference, often within less than a week. If you are being told otherwise, someone is giving you excuses instead of results. Not good.
I never cease to be astonished by the number of people who call me, telling me that nothing has happened on their filed for months and months. This is not something that is the fault of the court system – this is the fault of either the lawyer who does not want to push it forward, or a client who is digging in his or her heels and resisting. Again, however, client imposed delay can only occur if the lawyer on the other side allows it to occur. In my experience, Judges will quickly recognize a procrastinating party and will be very receptive and responsive to a request to fast track and/or case manage a matter to move it forward. It is, however, a bit like when you were dating – if you want to receive, you have to make the first move. If not, it’s going to be a long double feature at the drive in when the other person has the car keys and no intention of driving you where you want to go. Personally, I prefer driving my own bus.
If you are stuck in the mud, call for a free consultation on how to quickly get unstuck and back on the road to where you want to be.