Common Family Law Questions and tips part 1

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I have set out some common concerns and questions I’ve heard from people repeatedly over the years, and I plan on doing this in a number of separate articles.

It is impossible in an article such as this to provide definitive answers to every question, and everyone’s situation is different. However, I hope what follows might be a useful guide for obtaining preliminary information.

Affordable Family Lawyers

Legal services can be expensive and often people are afraid to get advice or approach a lawyer due to fear of costs.

Sometimes however poor advice or no advice can cost you more. Here are my best tips to minimise Family Law costs:

  • Have a discussion about costs up front. Ask the lawyer how they charge and what the rate will be. It is open for you to negotiate the rate or how the charges will be levied, for example, time costing or fixed fee. We find fixed fees for consent orders, pre-nuptial agreements and Divorce applications very popular with our Brisbane and Coolangatta clients.
  • If you are being time costed make sure you understand what work needs to be done in advance, and that you are “kept in the loop” with estimates for the cost of the work to be done. Lawyers are required to provide you with an estimate of costs at certain times and upon request.
  • Ask what you can do to reduce costs. One of the simple ways to reduce costs is present your instructions to the lawyer in an easily understood format. To assist our clients we have template documents, and detailed assistance to help our clients complete these documents themselves. We settle the final draft and the effect is a lot of our time, and your money, is saved.
  • Make sure your lawyer knows what they’re doing. Inexperienced lawyers can take a lot longer to complete a task and unfortunately you even get charged more with time costing. Bad advice can be devastating in terms of costs. Family law is a very complex area of practice and a specialist family lawyer can end up saving you a lot of money.

Of course, one of the absolutely best ways to save costs is to settle early, and minimise conflict, by taking a business-like approach to your separation, and following expert legal advice.

What if I have no available cash for legal fees?

This is not an uncommon scenario where one party may control the marital finances or be a primary income earner. The other party may have much less access to resources.

I have written a detailed article on what lawyers call a “Hogan” or “Barrow” Order on my site, situated at the following link:

https://www.hooperfamilylawyers.com.au/applications-for-litigation-expenses-aka-hogan-orders/

These Orders allow for legal costs to be met by the other spouse.

Other options include the following:

  • Deferred fee agreements. This is where the family lawyer accepts payment in full after the matter is concluded. It is important to understand this is not usually “no win, no fee” for family law matters. The fee will be payable at the end and sometimes firms will charge a higher rate to reflect their risk, and impact upon the cash flow of their practice. It remains important to consider the ways to reduce costs discussed above, to ask for estimates as to what the costs are, and to ask where the account is at regularly.
  • Legal Aid preferred suppliers. If you meet the asset and income criteria, and your matter meets Legal Aid criteria, you may receive a grant of aid. Most commonly this is for parenting matters and you need to re-apply for the next grant of aid after each step is completed. Typically, the grant commences with a Legal Aid Conference (mediation) being conducted.
  • Litigation lending. This is another option where some lenders will provide funding for your matter. The down side here is interest and changes that can apply.

Like each aspect of your matter you need advice. When booking in for an initial attendance with your family lawyer costs should form an important part of the discussion and advice.

Who pays the mortgage after separation?

This is often an issue when one party moves out and suddenly has to meet their own rental costs. The reality is the home loan secured by mortgage is between the parties and the bank or lender.

The bank or lender won’t consider the separation should affect their rights, and if the bank/lender doesn’t get paid they can exercise their right of foreclosure and sell the property (usually at a lesser price).

The Family Law Act 1975 does allow for Orders to be made directing a party to continue to meet mortgage expenses, and this can occur in a number of ways such as Spousal Maintenance or as on Interim Property Order, however, you need to file an Application in Court before this can occur. Also, the evidence would need to establish why the Court should make the Order you are seeking.

Some simple tips for addressing this issue are:

  • Consider what will be the long-term option i.e. will the party remaining in the home retain it and refinance? Will it need to be sold? Looking at the long term might help in working out what the short-term arrangements will be. For example, if the party remaining at the home wants to keep it, it may make sense that they meet the mortgage costs.
  • Come to an agreement with the other party as to what should occur. After considering the potential long-term arrangements, make an agreement as to the mechanics of when payments will be made, what account they will come from and if a sale is necessary, how will that occur (agents, marketing plans etc). A property can be sold before a final property settlement occurs. In my experience when there is a pool of cash to be divided often parties are motivated to reach an agreement. The only issue here I would flag is to make sure that the proceeds of sale are held in a solicitor’s trust account, for both parties, pending final agreement. Once money is distributed it can be difficult to claw back. If the parties need to access some cash to re-establish it can be agreed that each party receives a similar small amount.
  • For difficult partners or people who stay at the home and will not/cannot contribute to expenses, you may need creative solutions or a Court. If there are children at the home with the partner living there, a creative solution may be to agree to mortgage repayments being made in lieu of child support. Provided there are no domestic violence issues, the ousted party moving back in may be an option. If there is no cooperation with reaching agreement or progressing to final settlement, then Court intervention may be warranted.

How the Court regards a party’s post separation payments to the mortgage is by way of “post separation contributions”. What this means is that these payments can be recognised by the Judge in determining how much of the property pool each party gets.

Similarly, if a party causes loss by negligently, recklessly or wantonly refusing to pay the mortgage (and for example a foreclosure occurs), the Court may penalise that party in the final settlement.

Should I move out of the family home, or be separated under one roof?

Usually family lawyers will say don’t move out.

The reasons why include some of the issues referred to above in relation to mortgage costs and incurring additional rental costs.

Also, you can lose control of maintaining the asset in a saleable condition, if a sale is necessary.

If there is a situation where the other party is difficult, sitting in the home comfortably having the mortgage paid, Court application may become more likely. In my experience these situations can stifle settlement and lead to Family Court or Federal Circuit Court proceedings.

Separation under one roof is usually less than ideal, and uncomfortable for both parties, which can be a good motivator for a speedy settlement.

The big caveat on the above is domestic violence and personal safety. These always come first and if you, children or pets are in danger you should immediately leave to a place of safety.

Hopefully the above answers some question but it is no substitute for proper advice tailored to your situation.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost-effective manner. Please contact our Brisbane office on 3207 7663 or our Coolangatta office on 5599 3026 for an appointment.

 

Need more answers? Read our blogs;

Going to Court? – What to expect in the Family Law Courts

How relevant is fault or bad behaviour in relationship breakdown?

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