Separation and Divorce FAQs - Moe Hannah McNeill

The following are some frequently asked questions and general answers. The answers are general information and are not intended as a substitute for actual legal advice in any particular case. For advice about your specific situation please make an appointment for a consultation.

A: Many of our clients contact us shortly before or shortly after separating. We arrange a private consultation at our office and usually set aside at least an hour. Some consultations take longer. The purpose of the consultation is for the client to receive practical and legal advice about the separation and, if applicable, divorce process. Many of our clients are experiencing the break down of their marriage/relationship for the first time and do not know what to expect. This consultation is likely the most important meeting you will have with your lawyer as it informs, shapes expectations and provides guidance during the crucial early phase. If a separation gets off on a wrong footing the damage is sometimes irreparable. You will learn about the process, the law and receive practical advice and direction tailored to your unique circumstances. Almost all family lawyers charge their hourly rate for consultations. Free initial meetings are more common in personal injury matters where they are usually brief and used more as a marketing tool than a legal service. Lastly, you are not obligated to retain us after the consultation and we are not obligated to take you as a client.

A: Almost all lawyers who practice family law charge an hourly rate for their time (discussions with clients, legal research, drafting documents, attending meetings, attending court, etc.) and set fees for certain specific tasks (e.g., drafting certain documents). Less experienced lawyers charge as little as $200 per hour with hourly rates increasing with experience and expertise. Hours are broken down into tenths (e.g., a five minute call from a client will be charged as a .1 of an hour) and will appear on a statement of account with a description of the service rendered. Moe Hannah McNeill LLP accounts tend to be very detailed.

In addition to the lawyer’s hourly rate, the client pays GST and disbursements (e.g., the cost of filing a court document, expert reports, etc.). Our retainer agreements normally provide for payment from a pre-authorized credit card up to a maximum each month. This replaces the old “retainer” system where clients deposited money to cover fees in the lawyer’s trust account which was replenished as bills were rendered.

By charging clients each month in which work is performed they can keep careful track of their costs so they can put the brakes on or signal to continue as their financial circumstances allow.

Legal costs are tied to the amount of work required. High conflict or complex cases can require hundreds of hours of work. Low conflict and less complex cases can be completed in as little as ten hours. Consequently, it is difficult for a lawyer to say at the any point what the final cost will be. The best we can do, once we have a good idea of what the circumstances and personalities are, is to estimate a range in fees.

In some circumstances we limit our roles to one of advisor. We don’t actually appear in court or directly enter any negotiations, but provide advice and direction from time to time as the client requires. This is suitable for clients who need the benefit of our knowledge and expertise, but not our advocacy.

In all cases we have candid discussions with our clients about costs and benefits. We appreciate that clients depend on us to be objective where at times they cannot. In some circumstances a lawyer must remind a client that the cost of disputing a financial issue may approach or actually be greater than the money at stake. At other times we remind clients that it is an option to avoid a dispute altogether, leaving the client's money in the family.

A: In Alberta, you can file for a divorce without your spouse’s agreement or cooperation. It is sufficient that one spouse wants a divorce. But be prepared for a longer process, since the resistance can cause many types of delay.

A: A separation occurs when a couple decides to live separately for reasons other than temporary convenience (e.g., one spouse’s work takes him out of town for extended periods). The separation becomes “legal” if it results in a contract (Separation Agreement) that defines their rights and obligations as a separated couple. The separation does not affect their actual marital status. A divorce, on the other hand, is the legal dissolution of the marriage by way of a judgment from a judge (divorce judgment). It usually is granted after an action for divorce is started in court on the grounds that the parties have been or expect to be actually separated for a period greater than one year without the possibility of reconciliation. The divorce court action can be started before the year has expired, but the divorce cannot be granted until the year is up (unless other grounds for divorce are present, such as cruelty or adultery).

A: If it is uncontested, then a few months, depending on whether the basis of the divorce is a separation of greater than one year or some other ground. If there are related and unresolved issues (e.g., parenting, support or property division), then the divorce may have to wait until all outstanding issues are resolved.

A: An uncontested divorce is one where the spouses agree on all the issues - the grounds for divorce, custodial arrangements, support and alimony, and property division. In a contested divorce, one or more of these issues are disputed.

A. There are three: a period of separation of greater than one year without the possibility of reconciliation (the most common ground); mental or physical cruelty by your spouse against you; or adultery by your spouse which has not been condoned or forgiven. Misconduct of a spouse (e.g., adultery) is usually not relevant when it comes to determining parenting, support or property division. Advancing a claim for divorce on the grounds of cruelty or adultery is uncommon where it is disputed since by the time a trial occurs for a judge to determine whether the allegation is true, the parties will have been separated for more than one year, making proof of the cruelty or adultery as a ground for the divorce unnecessary.

Q: I’m worried about access to my children, but my wife is upset, protective and wants sole custody. How can Collaborative Law help?

A: Many divorcing couples experience the emotional tug of losing regular connection and communication with their children. They know how important it is to maintain a level of familiarity, comfort, security and love, even if they are not living together. Feelings are raw during the first few weeks and months of separation. Collaborative lawyers encourage couples to work together for the sake of their kids, despite anger, fear, resentment and worry they may have about their own reaction to the situation. Kids don’t understand why things are happening and they don’t care who is to blame. They just know things are changing and it’s bad. Collaborative Law can work by sitting down with the couple and their children to find out what they each want, even if there are little ones who don’t have much of a voice. Family experts can be retained to help establish a common ground and help parents and children see the bigger picture, beyond their emotional turmoil they're currently experiencing.

A: Often the total legal fees involved in a collaborative process are less than litigation, but not always. The savings will occur where the parties are prompt in disclosing information requested, facilitate attendance at settlement meetings, communicate respectfully and bring an attitude of working cooperatively rather than competitively. At times issues are complex and there is no substitute for long and hard work. Lawyers and other professionals charge by the hour. Generally, the more numerous and complex the issues, the greater the cost to reaching a satisfactory resolution.

A: In our opinion, very few. Collaborative Law works on the principles of integrity, transparency, partnership and fairness. Most clients that come in to our office are open to these guidelines of decorum and want to continue cultivating a good relationship with their soon-to-be former spouse and any children or family members/friends.

A: Trust is almost always an issue in a separation or divorce since a relationship that was once built on some level of trust has broken down. Collaborative law does not assume that spouses must blindly or naively trust each other. Transparency is key to any collaborative process. All potentially relevant financial information must be produced upon request, including any documentation or other independent sources needed to verify representations. “Due diligence” is as important to a collaborative divorce process as it is to a more litigious process. The difference is that in a collaborative process there is a voluntarily signed contract at the outset that demands honesty and full disclosure. Going to court to extract information is not necessary.

A: In traditional court proceedings, you retain a lawyer for their work, and hope for the best, without any promise of decorum or guarantee of victory. In Collaborative Law, not only do the spouses sign an agreement to act accordingly and honestly, the lawyers also sign the same agreement. If at any time, a lawyer acts inappropriately or has a conflict of interest in the Collaborative process, the contract is null and void and the client can then seek another lawyer to fulfill the duties necessary to complete the agreement.

A: Lawyers who belongs to the Calgary Association of Collaborative Lawyers or Professionals must first be trained and then maintain their ongoing education in the collaborative process. Doug Moe was one of the founders of Calgary’s collaborative family lawyer’s association and both Kevin Hannah and Beryl McNeill have served on its board and on various committees. Collaborative lawyers will lose their credentials and right to represent themselves as a part of the Association unless they adhere to the principles and ongoing qualifications required of them.

Q: My spouse’s family is worried about losing the family fortune to myself and the kids in the divorce. How can I convince them that Collaborative Law is fair for everyone?

A: Many couples go through the process of litigation because of pressure from peers and family members who only know of the traditional means of divorce. But it doesn’t have to be that way. We take the time to be sensitive to cultural, religious or family dynamics. We explain to parties who believe they are at risk of losing property, financial investments or respect that Collaborative Law takes into account all aspects of a relationship change, now and in the future. To get there, we require that the couple be open-minded, fair and friendly, and focus on the partnership between themselves and their lawyers. If there are children involved, we ensure their needs always come before in-law and extended family concerns.

Q: I’ve worked hard to establish my business and it’s very complicated to divide up, especially because it’s a private company. How can Collaborative Law protect me?

A: Collaborative lawyers are becoming increasingly encouraged to include financial professionals in the process where there are complicated financial questions involved. Accountants, financial advisors and those in related fields are actually receiving training in bringing their expertise to bear on the financial and tax aspects of marriage breakdown. In litigation, each party would hire their own expert (double the cost) who would critique the work of the other. In the collaborative process the parties jointly retain an expert who works in the interest of both parties, doing their best to facilitate a fair result and provide balanced advice and information.

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Frequently asked questions Separation and Divorce

Frequently asked questions
Separation and Divorce