You may have received information about property settlements from television shows, back yard BBQ’s, people you know, and good old Google searches. There’s a problem with this, though. Only your divorce lawyer (also called a family lawyer) can properly advise and guide you through the settlement process.

When you don’t have a family lawyer, what you find, hear or read
might not apply to you, like these five (debunked) myths below.

 

Myth #1: We can only start dividing property once we divorce

Not true. You can begin settlement proceedings when you separate. Calling your family/divorce lawyer is an important first step to take if you know there’s no chance of reconciliation.

Getting the right information early assists in minimising conflict, obtaining faster resolution and reducing legal costs.

Your divorce lawyer at Hooper Family Lawyers will answer any questions you have during an initial consultation, which can take up to two hours. Bring any documents you believe are important and make a list of you and your partner’s assets, superannuation and liabilities.

 

Myth #2: Everything is a 50/50 split

Just because you’re married or in a de facto relationship doesn’t mean assets are split 50/50 on separation.

The law requires that the contributions and future economic circumstances of the parties are examined. The amount of time the parties are together and number and age of children is often examined in assessing how much one side will receive.

The contributions of the parties are not just financial, but also non-financial and as homemaker and parent. Financial contributions do not rank more highly than others. That saying ‘money isn’t everything’ certainly applies here.

 

Myth #3: The only way to end this is going to court

Your divorce lawyer, divorce lawyer or family lawyer assists you to avoid going to court. Most will regard it as the last option. Instead of going to court, most divorce cases can get settled through mediation.

Even if court proceedings begin, the process is very much geared towards settlement. There’ll be directions for a conciliation conference or mediation ordered early on. Statistically, of the matters that begin in court only about 2% to 5% go all the way through to a final hearing.

 

Myth #4: The breadwinner will get more

The Court looks at the contributions that are direct and indirect, financial and nonfinancial. They also regard the acquisition, conservation and improvement of the properties for settlement; and as parent and homemaker, when it comes to adjusting property and superannuation. Even if one parent was a homemaker and didn’t work, they still contributed significantly to raising the children and maintaining the home. This is regarded the same as the breadwinner’s contribution.

When deciding how to divide property, the Court looks at the following:

  • The net value of the property, assets and superannuation
  • Contributions both parties have made over the years
  • The future needs of each side

 

Myth #5: My partner cheated, so the odds are in my favour

The Family Law Act 1975 introduced the concept of “no fault” divorce. Therefore the majority of judges aren’t concerned with any alleged misconduct from one side. Not even when the misconduct could be regarded as “immoral” or similar.

This changes if the misconduct has an economic impact. Where there has been a negligent, reckless or wanton destruction of property, the conduct of whoever’s responsible is considered. Gambling or even the effect of domestic violence on property are examples of this.

In child custody cases, behaviour/conduct is closely examined. The conduct, though, must be relevant to best interests of the child, especially when protecting them from unnecessary risks. Will the settlement affect a parent’s ability to keep their kids safe from emotional, physical or sexual harm?

The above are some of the “myths” commonly encountered, but there’s plenty more out there. You best way forward is to trust a family law expert, your divorce lawyer. We set you on the correct path from the moment you walk into your consultation.

When a separation happens, it’s logical to contact a divorce lawyer to guide you through the process. There’s a lot of advice for them to give and they can’t explain it all in one meeting, so we compiled this list.

Help us help you.

It’s better to come prepared to the initial meeting and the ones that follow. Relevant dates (marriage, birth dates etc), financial documents such as tax information, payslips, receipts, phone records, letters, and the like will help your divorce lawyer get a better picture of the situation. It is very helpful to produce a list of all of the assets and liabilities of the marriage or relationship.

Don’t do things out of spite.

Divorces are what you make of them, and contrary to common belief there is such a thing as an amicable divorce. It’s not good to be that person who throws out their partner’s things onto the pavement and blasts angry messages over Facebook. Vindictive, angry behaviour makes resolution more difficult and in some cases amounts to family violence.

Don’t listen to divorce gossip.

No matter how good your friend’s or family’s intentions are, everyone’s situation is different. Don’t ruin a potentially smooth process by comparing your situation to your sister’s/neighbour’s/anyone else’s. It’ll cause you headaches of all different kinds.

You are important, so take care of yourself.

Get a counsellor if you need to. Lean on someone you trust (just don’t listen to their divorce advice) and be with your children. Go to the gym and sweat out some frustration. There’s no ‘emotional justice’ in divorce, or control on either side. So don’t expect to ‘win’ per se, just be happy you made it through.

The process takes time.

The courts, the law, and the paperwork in your divorce moves according to its own schedule. Litigation takes even longer thanks to court dates, applications and the like. Your divorce lawyer will advise against going to court, but sometimes it can’t get helped if there’s major issues that can’t be resolved easily. Clients shouldn’t expect to walk away from the whole affair quickly. There’s assets to divide and sometimes custody to work out.

You can’t talk to your spouse’s solicitor.

If you have representation of your own, it’s not allowed. If you try and contact them they won’t speak to you. Your own divorce lawyer is on your side and is there to convey messages. You can trust them to do it.

In 2006 the Howard Government made changes to the Family Law Act 1975. This made Family Dispute Resolution (generally mediation) compulsory in most parenting matters. An Accredited Family Dispute Resolution Practitioner conducts the mediations. They have the authority to issue a certificate related to section 60I of the Act.

The Certificate (or final report) is like a piece of evidence for the Court. It includes whether the parties both attended mediation and made a genuine attempt to mediate or whether the Family Dispute Resolution Practitioner determined mediation is inappropriate.

Child focused or child inclusive mediation are two mediation models made to help parents work out a suitable parenting arrangement after their separation. Below is basic information on these models, the mediation process and recording of agreements.

What’s child focused and child inclusive mediation?

Child focused mediation seeks to encourage the parties to look beyond their disputes and consider how the agreements benefit the children. Often the mediator will educate the parents to better understand how the dispute and separation negatively impacts their children, both in the long and short term. Hopefully this information will help the parents to look beyond their positions, personal
wants and needs and encourage them to focus on the children.

The child inclusive mediation takes this a step further by arranging for the children to have an interview with a qualified child consultant. They speak with the children in a separate session, and will relay the children’s thoughts and feelings to the mediator and the parents. The child consultant carefully considers what information to report; their priority is the child’s welfare in the separation.

Child focused mediation resulted in greater fulfilment with the mediation process and longer lasting agreements. Child inclusive mediation, though, provided even better results than child focused mediation in these areas. (McIntosh, Wells et al, 2008:46McIntosh 2007:4)

Screening process

In this initial process, each parent meets with the Family Dispute Resolution Practitioner mediator. They screen for factors that may make mediation inappropriate. These factors include family violence, substance abuse, mental health and other imbalances affecting a party’s ability to participate in mediation.

On occasion the Family Dispute Resolution Practitioner will need to “balance power”. It’s not unheard of for both sides to try and “tip” the balance in mediations to their advantage. Therefore, the screening is vital to determine the needs of the parties and if mediation is a realistic route to take.

Facilitative mediation

The Family Dispute Resolution Practitioner’s role is to assist the parties to determine the outcome for the dispute themselves. It isn’t the role of the Family Dispute Resolution Practitioner mediator to advise or influence a party.

Generally, the Family Dispute Resolution process will require these steps:

  1. Mediator opens the proceedings and explains the rules;
  2. Receive opening statements from the parties. Both sides should speak uninterrupted;
  3. The mediator acknowledges and identifies common ground; An agenda is set in terms of the topics that need discussing;
  4. Both sides engage to explore the topics in the agenda;
  5. The mediator identifies options and obstacles;
  6. The mediator holds confidential private sessions with each party to discuss the viability of the options covered in the meetings;
  7. Negotiation between the parties;
  8. If an agreement is reached, it’s put on record.

Parenting Plans

Parenting Plans are methods of recording the agreements. These are written, signed and dated. These plans aren’t enforceable in a Court. But if the matter makes it that far, the Parenting Plan is evidence that an agreement exists, and is usually persuasive with the Court’s final decision.

The shock of divorce is tough; finding a qualified lawyer or solicitor is crucial to help deal with all the challenges you’ll face on the way. Thanks to the emotional strain of separation, it’s difficult to deal with matters like child custody, splitting property and dividing assets. Having the right representation will make dealing with these much easier. But the question at the front of people’s minds is; how do I choose a family lawyer?

  • Google. A Lot.

In this day and age anyone can find anything on the internet. Going to a legal authority such as the Queensland Law Society will help you narrow down your search.

If you know someone who’s gone through a similar experience, it’s good to ask them for advice. They might even recommend the solicitor who represented them. Word of mouth is just as good as a five-star review, but both combined together are signs of a great practice.

When you’re searching the web, check a lawyer’s qualifications. Lawyers have to learn new things constantly so that they’re up to date with the latest legal developments in their speciality. They should also have recognition from a state legal society and bar association.

  • They make you feel comfortable

The family lawyer will be representing you during one of the toughest times in your life. When you sit down with them, it’s important to feel at ease. Entering a meeting and feeling your guard go up with no signs of going down isn’t a good place to start. There’s no shame in saying the solicitor you met with isn’t right for you. Sometimes people want to work with someone their own age or their own gender.

  • They tell it like it is

Your lawyer is on your side but that doesn’t mean they’re supposed to agree with everything you say. Family lawyers act in the best interests of who they represent and they’ll try to fulfil wishes to the best of their ability. Sometimes though, some desires just aren’t achievable and a good lawyer will actively work towards a compromise.

A good family lawyer also communicates with their client regularly in terms of fees and settlements. In the legal area there’s no need to put people through any more stress that they can otherwise avoid.  

It’s that time of year again and things can become a little tense as holiday, Christmas Day and New Year plans for separated families are negotiated or implemented.

Separation is never easy; and special occasions like Christmas can often be very difficult, highlighting the reality of the changed living arrangements post separation. This can be the case for parents who have “custody of children” as well as for the parents who have arrangements traditionally thought of as “access”, “contact” or “spends time and communicates”.

The important thing to remember in any post separation parenting situation is negotiations occur “in the shadow of the law”.

This means both disputing parents ought to consider how the law might apply to their circumstances when they are engaging in negotiations.

The law empowers judges to exercise “discretion” to make parenting orders, and the process by which this occurs is complex.

However, two very important propositions bear heavily in the mind of a judge being called upon to make a parenting order. These are:

  1. Children have rights; while parents have responsibilities;
  2. Parenting arrangements ought to be in the best interests of the children.

From a practical perspective the best thing for both parents to do is remain “child focused”. This means try to consider what arrangements will place the best interests of the children, ahead of their own interests or feelings.

In my experience as a Brisbane Family Lawyer, some of the things that may be relevant for you to think about, or ask yourself, in making parenting arrangements at Christmas:

  • Making Christmas time a happy childhood memory. One of the most important issues for children’s mental health is to not be exposed to disputes between their parents. Studies have shown witnessing family violence generates similar response in children as having violence directed towards them; and some writers argue “exposing a child to domestic violence is a form of abuse in itself, regardless of whether the child is the target of such violence or not.”
  • Would the children be excited to see both of their parents, grandparents and other people who are important to them on Christmas Day? Is splitting Christmas Day in half what the children would likely prefer? Or would they be happier not to travel on Christmas Day; instead spending Christmas with one parent one year, and with the other the next;
  • If one parent has issues affecting the children’s safety, such as drug or alcohol problems, is there someone trusted who might supervise the time?
  • Will you let them take some of the gifts to the other parents home? Sometimes an item can represent a connection to the home they are not in;
  • Can they give a gift to the other parent?
  • Have you made planned holiday activities and outings, and taken time off work etc.

These are adult issues and it’s not a good idea to question your children directly as to what they want. Hopefully you know your children well enough to have an instinctive knowledge of what parenting arrangements they would prefer.

One of the most child focused post separation steps you can take for your children is to be “business like” in your dealings with the other parent, even in difficult circumstances, or when Court proceedings have commenced.

If you are dealing with a difficult or litigious ex-partner in a parenting matter, conducting yourself in a manner consistent with the above will be important evidence that you are child focused.

Judges make Orders they think will promote children’s rights and best interests. In my experience it is usually very obvious to the Judge whether one party (or both) is not behaving in a child focused way. If it’s not obvious immediately, it will usually become obvious as the litigation proceeds.

If you need the assistance of the Court to spend time with your children at Christmas, remember this is traditionally a busy period, and it is a good idea to get advice as earlier in the year. Rule 5.01A Family Law Rules 2004 provides the application must be filed before 4.00 pm on the second Friday in November of the application year if it relates to Parenting Orders during the Christmas School holiday period.

Ref: Flood and Fergus 2008 referred to in Morgan A and Chadwick H (2009) “Key Issues in Domestic Violence” Australian Institute in Criminology, Summary Paper No 7, at 8.

 

Can you afford to Divorce? – Article written by Olivia Maragna and published by brisbanetimes.com.au

 

My Comment:

“I think another expense is the high costs of legal fees that can also flow from relationship breakdown.

My view is the importance of planning for high legal fees will depend upon the nature of the relationship; and likelihood of the separation being acrimonious. Bigger fights mean bigger fees and it’s no surprise to people who have experienced family law litigation that lawyers are the ones who can often profit the most.

I often tell my client that the smartest and least expensive way to resolve a dispute is to follow these steps:

  1. Before starting to negotiate, each party should obtain independent legal advice from a lawyer skilled in family law. Lawyers, who dabble in family law, don’t know the law, or who behave in an inflammatory manner can cost you money. My view is, to avoid doubt see a lawyer who is an accredited family law specialist;
  2. Armed with accurate advice, commence negotiation. Discuss with the other party what you need or want based on what you have been told the range of outcomes may be. There are 2 ideas here. Firstly, if both parties have had proper advice, the range of outcomes communicated to them will likely overlap. When there is an overlap in the advice both parties have received, settlement is more likely because there is common ground. Secondly, rather than negotiate by way of “Dutch auction”, try and form an understanding of the other party’s needs and motivations. If the parties understand each other it may be possible to think outside the box and achieve the settlement most mutually beneficial;
  3. Negotiate by email or in writing. Settlement communications prima facie can’t be used in court by virtue of section 131 Evidence Act 1995 (Cth), and the common law regarding privilege attached to settlement negotiations. If in doubt you can add the words, “without prejudice” to your communications;
  4. Once an agreement is reached, return to the lawyers to have the agreement drafted into the proper form.

Having a consent order application, parenting plan or binding financial agreement drafted without the costs of the “back and forth” between lawyers can save a lot of money.

If you can’t communicate with your spouse directly; or if there is power imbalance through intimidation or family violence; the lawyers and mediators may be the only option to assist with the negotiation process.

If it is the case there is acrimony, negotiation is difficult or court is unavoidable, there are some strategies you can use to reduce your legal fees:

  1. Most lawyers time cost so limit your communications to what is absolutely necessary;
  2. Provide detailed instructions in writing so your lawyer doesn’t have to chase you for information;
  3. Ask your lawyer if they can provide you with blank court family law forms in a Word format. If not, please note all of the court documents and some very useful fact sheets can be found on the Family Court and Federal Circuit Court websites (we have commonly used forms available on our website). Providing your lawyer with instructions in this format can reduce time and thus costs to you;
  4. Provide your lawyer with a detailed relationship chronology in a Word format. The chronology should start at the beginning of the relationship and specify all of the important dates and occurrences. You should do a different chronology for property and children. In documents such as this stick to the facts and avoid statements of opinion or submissions;
  5. If your lawyer asks you to obtain information or documents, be proactive. Costs can be reduced by avoiding the necessity for the lawyer to chase you up; and if the matter moves quickly without dragging on costs will likely be reduced;
  6. Consider the “cost benefit analysis” when examining the other party’s proposal. Is what you’re fighting about worth the cost? Costs in family law matters are not just financial. There is a lot of stress associated with the process and if children are involved it is very beneficial to try and preserve a future working relationship with the other party;
  7. Read your costs agreement and ask for estimates of costs before major work is undertaken.

Reducing costs can be achieved by working with your lawyer and by keeping the issue of costs clearly understood between you and your lawyer.”

The number of couples divorcing after 20 years of marriage has doubled in the past 10 years as more parents wait until the kids leave home to separate. Women’s Weekly Article

But what if divorced homes weren’t broken at all and children were, in fact, thriving? What if parents were happily living apart and setting a good example to children, who were secure in the knowledge that they are loved and valued by both parents? Read article here

AN Australian travel agent is bringing new meaning to the term “gay divorcee” – organising holidays for divorced women who want to kick up their stilettos. Read article here