Watch Out For These Roadblocks to Negotiating Effectively…

Kathryn Jankowski headshot

By Kathryn Jankowski

B.A., CFP, CFDS, FMA, AccFM

Certified Financial Divorce Specialist and Accredited Family Mediator

Divorcing people are, typically, under a lot of stress and sometimes they forget how to argue effectively during their negotiations.  Stressful situations often bring out the worst in people.  Remember, however, that when you are trying to work out a reasonable deal with your soon-to-be-Ex that (s)he is less likely to give you any consideration if you argue in a way that makes them defensive.  Right? So here’s a list of what not to do to ensure you don’t argue ineffectively.

Blaming And/or Bringing Up The Past

Blaming someone for bad behaviour is only going to make them defensive, especially when you do it in front of someone you have known for a relatively short period of time (your collaborative lawyer).  This is not how to get on your Ex’s good side.

Yelling

Often when we yell no one really hears us.  Have you ever noticed that the louder you get the less someone is listening to what it is you are saying?  When you yell the only thing the other person hears is that you are angry.  Sometimes it’s not so much what you say but how you say it.  Consider this when negotiating.

Picking Out Small Issues

When you are negotiating and making decisions that affect your life you might want to stay on track.  Dealing with the important, substantive issues is key.  If you want to pick out the small issues it’s probably not a good idea to alienate your spouse to a point where he or she doesn’t want to consider the rationality about the big stuff if you keep picking out the small stuff.

Interrupting

If you are listening just to get a chance to respond you won’t get anywhere in the conversation.  I call this the ‘circular conversation’ as each person restates their position because they know they weren’t heard.  If you truly listen to the other person you might gain some insight as to why they feel a certain way about something.  That insight might gain you an opportunity to have that need met in another way.  A way that might work for you both.

Assuming

If you aren’t quite sure what someone meant, ask them.  Sometimes I ask my clients to restate what they have heard from the other person just to make sure they were listening.  It also gives the listener an opportunity to restate and reset the understanding if the listener didn’t get it quite right.  Clarifying the point can also give you the opportunity to find out what is important to your spouse and why.  Maybe their need can be met in a way they haven’t considered.

What you could do to be an effective communicator:

Take Your Time

Don’t just say the first thing that you think.  Instead, consider how your spouse might understand what you are about to say.  Put yourself in their shoes.  Sometimes, it’s not what you say but how you say it.  I think I’ve said that before…..

Treat Your Spouse How You Want To Be Treated

OK, I know this isn’t always easy but if you are constantly kind and non-threatening but still getting your message out it can defuse your spouse to reasonableness.  It’s hard to engage your anger when someone is being nice and considerate towards you, even if they aren’t agreeing.  Ever heard the saying, “It’s easier to kill a bee with honey than with vinegar?”

In the end, what you end up with after the negotiations are said and done can affect your life in a big way.  You might consider how you want to argue, effectively or ineffectively.

Kathryn can be reached at:
Financial Divorce Services & Family Mediation
151 Randall Street, Suite 100
Oakville, Ontario
L6J 1P5

Business Phone: 416-729-7981

Website: www.financialdivorceservices.com
Twitter: @KJankowski
Facebook: Financial Divorce Services

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When the housing market is hot but the marriage has grown cold…

Tired of reading about the “housing bubble?”  Me too.

The cost of housing has become a big issue for families who separate in Halton.  It seeps into almost every negotiation or mediation as an issue…a challenge…a jackpot…depending on the family members’ goals.

To be clear, the law has not changed.  It’s the other stuff that changes now – the decisions people make when they separate and the options available to people who are now looking to live in separate homes.

For those of us who work in Collaborative Practice and family mediation it’s all very significant.  Our clients’ mutual goals are at the root of these processes.  Goals such as:

  • Residing in the same school catchment area so the children don’t have to change schools;
  • Both parents residing near each other to accommodate a shared parenting schedule; and
  • Maintaining homes with similar standards so the children feel “at home” in both parents’ residences.

Often, when there are children, one parent will purchase the other parent’s interest in a matrimonial home to allow the children to remain in the neighbourhood.  These days we’re seeing house prices so high that it’s not as easy for a newly-single parent to finance that kind of a “buy-out.”

We’re seeing situations where it might have been easy enough for one spouse to purchase the other’s interest on the day they separated, but six months later (it can take a number of months to get from the point of deciding to separate to the point where these decisions are made) that house might sell for substantially more if it were listed on the market.

I’ve reached out to Collaborative family professionals and mediators to learn about some of the solutions their clients have come up with to try to meet their goals when it comes to the family home.  In many of these situations, it’s not what a judge would do (you can talk to your lawyer about what a judge would have to do – they are bound by the law).  Here are some of those solutions:

Right of First Refusal on Sale

In some cases, one keeps the house and the other holds a “right of first refusal” where he or she would have the first opportunity to purchase the property before it is listed for sale.  I am advised that in these cases the party with this right has not exercised it and the property has been sold on the open market.

Continued joint ownership with minimal draw

In one case a separated spouse agreed to sell her share of the equity in the home to her former spouse based on a mutually agreed amount, however, the “selling” spouse was only taking what he needed to purchase his new home.  The balance would be paid out later in installments based on a schedule that worked for both of them.

Defer sale

In some cases separated spouses are agreeing to remain on title, although only one will remain in the home.  They may come up with a plan to determine whether there will be continued contribution to mortgage payments and (in some cases) other operating costs.  They agree on a time frame for the sale.

Formal appraisals

Certified appraisers will value the property (separated spouses may choose to retain one neutral appraiser who works for both of them, or in some cases they work with more than one appraiser and establish a mid-point).  One spouse would purchase the other’s 50 per cent interest.

There have been other cases where separated spouses have considered obtaining a valuation at the date of separation and a valuation at the current date to determine the percentage increase in value from separation to the date they were ready to address the issue, and then agree on some amount in between taking into account commission fees, etc.

The issue with the formal valuations now seems to be that many houses are selling above what certified appraisers would value as their worth.

Ignore valuations

There have been still other cases where parties have agreed not to use the price at which they anticipate the house could be sold and instead one party has agreed to transfer his or her interest to the other for less than the expected “market value” so children can remain in the home.

Sale on the open market

There have a been a number of cases where the house was simple listed and sold for a lot of money.  For some, the parties were happy to see how much they would receive from the sale of their home. For others, it was disappointing as one former spouse had hoped to purchase the other’s interest (they simply could not settle on an appropriate price).

The difficulty, then, is that everybody needs a place to live and it’s not an ideal time to purchase one home, let alone two.

I often advise my clients to seek the assistance of a Financial Divorce Specialist who can help them see their options and make sound financial decisions that work within their budgets.

As always, when parties are working in a Collaborative process, or in mediation, there are far more options available and it’s much more likely that a family will end up with the arrangement that works best for all.

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Marian Gage is a Collaborative Family Lawyer, an Accredited Family Mediator (OAFM), a Certified Specialist in Family Law (LSUC) and a partner at Berry Gage LLP

 

From Spouse to Roommate…

When is a separation not a separation? It depends on who you ask.

In family law two people are considered to be separated when at least one of them accepts that the relationship is over and there is no prospect of reconciliation.

In income tax law, Canada Revenue Agency only considers those two people “separated” when they are living in separate residences (and can prove it).

This article is about the former –those living in the awkward aftermath of their separation while still in the same house. It’s very common, although not ideal. Separated spouses often have to stay in the home while they work through all of their rights and responsibilities arising from their new “separated” status.

Many lawyers will advise their clients not to leave a matrimonial home where the children are residing because it can impact their rights as parents. While this applies to some parents in some situations I tend to tell my clients that a decision to continue living in a home in a high-conflict situation involves weighing the pros and cons and assessing one’s priorities.

For those who do remain in the home together in the weeks or months following a separation it will be important to try to ease the tension and minimize conflict in the home. This is especially true if there are children at home.

Michele James is a Registered Psychotherapist and an Accredited Family Mediator in Oakville, Ontario. She often helps clients through this difficult process. She has the following advice for people who must share a home after they separate:

1. Focus on your kids.

“Each child reacts differently to their parents separating. Find out what they need and work to meet those needs. Hint: all kids need support, stability, love,” says James.

“Children may experience confusion when told that their parents are separated yet they see them continuing to live together. It’s important, therefore, for parents to communicate openly and to explain to them that although their relationship is over, they are still parents and they will continue to love and care for their kids.

“Kids often need reassurance that the divorce is not their fault. Avoid blame, and any adult information about the separation.” She suggests parents consider connecting children to a child therapist who specializes in divorce to support them through the transition.

2. Practice being co-parents.

“Look at the family schedule and figure out how you are going to divide up the responsibilities of caring for your family. Perhaps take the opportunity to try out the schedule you will use once you physically separate,” James suggests.

“When it’s your block of time with your kids, give them your attention. When it’s the other parent’s block of time with the kids, try to discretely leave the home so the children get used to each parent functioning as the primary parent. That said, maintain flexibility and be open to overlap, as a precise division of responsibilities is difficult when living under the same roof.”

3. Take time for you.

“If you have spent time on an airplane, you will be familiar with the instruction, ‘Put the oxygen mask on yourself first.’ This isn’t selfish, it’s survival,” says James.

“If you aren’t intentionally taking time to care for yourself, you will have less energy and patience, especially for your kids. Get some exercise, spend time with friends, find a new hobby/passion.”

4. Be mindful of how you communicate with each other.

“Living under the same roof when separated is emotionally taxing. It is a good idea to establish clear boundaries regarding how and when the two of you are going to communicate with each other.”

James further suggests that if there has been conflict in the relationship, it is wise to consider hiring an Accredited Family Mediator, “to help the two of you communicate with each other in a respectful and productive manner.”

5. Remember that this too shall pass.

“This is a temporary living arrangement. You will have your own place. You will heal from the pain and stress of your relationship ending. It’s easy to feel overwhelmed and possibly depressed when living in transition. Although easier said than done, focusing on the positive will help minimize the negative aspects of living together.”

How can the Professionals Help?

James suggests that if your mood becomes consistently low, or if you just need a safe space to work through your thoughts and feelings, it’s time to consider hiring a professional such as a Registered Psychotherapist, Registered Marriage and Family Therapist or a Registered Social Worker to help you.

You may also want to work with such a professional to create boundaries and guidelines for the family while you continue to live together.

Lawyers and family mediators play a different role. These professionals can help you move forward to the point where you no longer need to live together in the home. Even if you haven’t come to a final resolution on all matters (this can take time), your lawyers and/or your family mediator can help you negotiate an interim agreement that will provide for you to live in separate residence while you finalize your matter.

Separation can be expensive and you can minimize the financial cost if you’re mindful of the ways in which you work with the professionals. Think twice before calling your lawyer when you can’t agree who should move into the guest room or who gets to use the stove to make dinner next Sunday. Save those legal fees and treat yourself to a dinner out instead.

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Marian Gage is a Certified Family Law Specialist (LSUC), a Collaborative Family Lawyer, Accredited Family Mediator and a Partner at Berry Gage LLP Family Law and Mediation.

Your Wedding Season Downer

The end of May is here.  The weather is warm and beautiful.  It’s time to check those wedding registries and grab your tissues: It’s Wedding Season.

As a divorce lawyer I’m not the first person soon-to-be newlyweds want to talk to as they plan their special day.  Still, I’ve got a job to do here and I feel it’s my duty to write this.  I’ll try to keep it short and sweet.  I’ll keep it short, in any event.  Short for a lawyer.

About 40 per cent of marriages in Canada end in divorce (see – we’re having so much fun already).  Just keep that statistic in the back of your mind.  Divorce happens.

Marriage is a contract.  It is not “like” a contract.  It is a binding legal contract between two people.  The rights and obligations that married people contract into automatically when they are married are governed by several pieces of legislation including the Divorce Act and, in Ontario, the Ontario Family Law Act.

It is possible to contract out of certain provisions in the relevant legislation, but not all of them, and that would require a separate contract.

Before we get married we spend so much time and money finding the perfect flowers, the perfect venue, the best cake, the table ornaments. We read the wedding planner’s contract.  We educate ourselves before booking the honeymoon vacation.

It surprises me how few of my clients learned about the binding rights and obligations that would arise on their wedding day before that big day.  Those rights and obligations govern important things like the rights you have with respect to your home, your assets and the way in which you will financially support each other going forward.

The best place to get information about the legal impact of marriage is from a qualified family lawyer.  Like any contract, it’s a good idea to know what it means before signing.  If you’re looking for information as part of planning for your special day (and your life thereafter) don’t hesitate to contact us.

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Marian Gage is a Collaborative Family Lawyer, Accredited Family Mediator and a Partner at Berry Gage LLP Family Law and Mediation.

 

 

Are your legal fees tax deductible?

By Marian G. Gage, B.J., LL.B., AccFM (OAFM)

…maybe.  If you paid legal fees in pursuit of child support or spousal support in your family law matter you may qualify for a tax deduction.

Canada Revenue Agency will allow a tax deduction for support recipients on line 221 of their Income Tax Return for legal fees incurred for the following reasons:

  • To collect late support payments;
  • To establish the amount of support payments from their current or former spouse or common-law partner;
  • To establish the amount of support payments from the legal parent of their child (who is not their current or former spouse or common-law partner) where the support is payable under the terms of a court order;
  • To try to get an increase in support payments; and
  • To make changes so that child support payments are not taxed (these payments were once treated as taxable income).

The deduction only applies to recipients and not to support payers who incur legal fees to resolve any support matters.

Talk to your accountant if you think this deduction might apply to you.

If you are a recipient claiming these deductions, make sure you have backup documents to prove the fees you paid.

If you require a letter from Berry Gage LLP confirming the legal fees you paid to us in the pursuit of child support or spousal support do not hesitate to ask.

 

 

Summer Vacation Starts Early

By Marian G. Gage, B.J., LL.B., AccFM (OAFM)

It’s hard to put one’s mind to something as intangible as summer vacation when the kids are still looking forward to March Break.  Meanwhile, most summer camp registration is now open and spots in the most coveted camps are filling up.  It is time to put our minds to those nine (or is it 10 again this year?) school-less weeks.

For separated parents, the planning should start as soon as possible.  There are a number of things to think about:

  • What will the children’s residential schedule look like this summer?
  • Have you accounted for long weekends? Even Canada Day falls on a Friday this year.
  • Are there travel plans for the children? Will you need consent letters?
  • If camp is on the horizon, which camps? Who will decide?
  • What is the camp budget – YMCA or Muskoka Woods?

Parents are advised to work through these issues well in advance to avoid a last minute scramble if there is disagreement.

Going forward, set out in a parenting plan the way in which these decisions will be made from year to year.  Some common provisions include agreements to book travel times by a certain date every year (with the first choice alternating from year to year if both parents prefer the same date) and setting out expectations and timelines for summer camp registration and payment.

 

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Marian Gage is a Collaborative Family Lawyer, Accredited Family Mediator and a Partner at Berry Gage LLP Family Law and Mediation.