Family

Resist revenge, pick your battles in divorce: Gelman

By Mia Clarke, Associate Editor

As tempting as it may be, it’s not wise to drag peripheral issues into a divorce battle, says Toronto family lawyer Lisa Gelman.

“Judges don’t want to hear about how much your ex drinks or that he had an affair with the secretary,” says Gelman, principal of Gelman & Associates.

“These issues often get raised, and people make a big fuss out of it,” she tells AdvocateDaily.com. “But judges typically focus on the best interest of the children on a grander scale in terms of neglect or abuse.”

And while it may make participants feel better to unleash every irksome issue out of revenge, it will likely cost them in the long run and not make a bit of difference in the division of property or the custody of the children, says Gelman.

The courts are filled with examples of how expensive litigation can get when couples can’t agree on anything, she says.

In one recent example, Justice Patrick Monahan wrote: "The vast majority of parties involved in family law proceedings heed these calls for compromise and voluntary resolution of their disputes. Over 90 per cent of family law disputes settle before trial. But co-operation must be chosen by the parties involved rather than imposed through law.

"Regardless of the fact that a voluntary resolution is generally in the best interest of all involved, there will inevitably remain a minority of cases where one or both of the parties are determined to pursue their dispute to the (usually bitter) end. This is one of those minority of cases.’”

And that legal battle ended up costing the parties almost $1 million, noted the judge.

Gelman says it’s far more efficient to focus on the relevant issues and resist the urge to drag others into the process — like infidelity.

“Adultery is generally a factor that does not affect property division or support,” she says. “It’s the same for insignificant transfers of funds prior to separation.

“Estranged spouses often spend an enormous amount of time combing through their bank statements to see if there's any of those withdrawals or transfers. Even if there is a transfer, it's very hard to prove that it was done in contemplation of divorce or separation.”

Gelman says divorcing spouses also frequently try to criticize the other’s parenting style.

“They may feel that their ex isn’t parenting to an adequate level, and so they accuse the other person of not spending enough time with the child. Or, they might say the dad is putting the child in front of the TV too much or relies on someone else to take care of them.”

These “accusations of imperfect parenting generally don’t get traction in court,” she says.

Judges do, however, pay attention to abuse and neglect, says Gelman.

“For example, putting children in harm's way by drinking and driving with them in the vehicle,” she says.

Underemployment is another issue that’s fair game in court, says Gelman.

“If your spouse used to make $150,000 and now they're claiming they can only make $50 — and they don’t have a valid explanation — that's a big issue that can be raised,” she says.

Getting distracted by other issues will only prolong the process and keep adding to legal costs, says Gelman.

“’I’m bitter because you slept around behind my back’ can translate into ‘I’m not budging from wanting the highest level of spousal support from you.’ But in the end, raising those grudges doesn’t make any difference to the final settlement,” she says.

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