Practical Advice for a Less Contentious Divorce or Separation from a Divorce Lawyer
When you speak to people who are not involved in family law on a daily basis, as I do as a Divorce Lawyer, it is apparent that their knowledge and perception of divorce and separation is shaped by horror stories. I often hear stories about that one friend, relative or acquaintance that has been through the family-law ringer.
Invariably, these horror stories involve people losing their house, large portions of their superannuation, time with their children and sometimes even their pets! These stories usually involve an unsavoury cast of characters beginning with the person they married, the lawyers involved (who are always nasty and charging excessive fees) and a judges who are clearly biased.
Our popular culture tends to lend credence to this caricature by portraying family law in television and movies as a winner-take-all battlefield. Rarely is family law depicted as cooperative, collaborative or civil. In reality (thankfully) family law is usually nothing like the portrayals found in media or stories from friends. Yes there are some matters that are contentious, acrimonious and high-stakes.
These cases represent the minority of family law matters. A fact that would surprise most people is that the great majority of cases are resolved by agreement, with little acrimony, in a cooperative and cost-effective manner. Despite the fact that this makes for a less interesting story or boring television, the reality is that most divorce or separation cases fall in the “boring” category and not the “horror-story” category.
So what differentiates cases that are legitimate horror stories from cases that resolve quickly, efficiently and amicably? Here are a few important factors:
1. The parties have each come to terms emotionally with their split
This is a huge and often overlooked factor that can control the tenor of how a divorce or separation matter proceeds. Often in relationships, one party has “checked out” emotionally months or sometimes years before the other party even realises that there is a problem. Sometimes one party wants to separate and the other does not. In such situations, where the parties are at disparate levels of emotional readiness to deal with the separation, getting the party who has not “caught up” emotionally to the negotiating table for meaningful discussion can be a challenge.
That party is not ready to admit that the relationship is over, much less decide how their property is going to be divided. Often, a large amount of time, effort and energy is spent at the outset of these cases bringing one client up to speed emotionally so that they can actually realise the finality of their relationship and allow them to move on with their life.
In such situations, therapists, counsellors and support groups can play a huge role in assisting someone in a separation with their sense of loss and their ability to move on from their relationship. This in turn makes negotiating amicably and reasonably a much more likely scenario. I encourage my clients to lean on their natural support systems in these times for strength and encouragement.
2. Both parties have played fair
The Family Court requires that all parties to family law property matters make full and frank disclosure of all of their assets, liabilities, income and expenses. The purpose of the financial disclosure requirement is to put both parties on notice of the contents of the asset pool so that they can make informed decisions as to what portion constitutes their entitlement. Sometimes parties to family law matters choose to not disclose assets.
This can cause unnecessary delay and expense for the party who has to search to find evidence of the true ownership and value of such assets. An even more common scenario occurs in matters involving self-employed people or business owners who either hide their true income or intentionally minimise it. The other party then has no choice but to perform an investigation into the true income and asset picture of the offending party. These types of family law property cases, where one party does not “play fair”, rarely end amicably, efficiently or quickly.
In parenting cases, “playing fair” means acting in the best interests of your children and their needs. It means cooperating with the other party (even if you cannot stand the sight of them) so that your children benefit from the cooperation. Cases in which the parties prioritise their own needs and emotions behind those of their children tend to lend themselves to resolution. Cases in which the parties act selfishly in regard to parenting or attempt to use the children to hurt the other party emotionally usually cannot be settled amicably.
3. The parties take the “long-term” view
I often ask my clients to envision what their life will be like post-divorce or separation. “What will it be like a year from now?” or “how about 5 years? I will sometimes ask other questions, such as “what are the goals you are setting for yourself?” Or “what do you want to do now that you are making a new beginning?”
Some clients have given literally no thought to what lies ahead. Some are mired in the short term and have no conception of the “big picture” of their life and how their divorce or separation factors into it. I find that these clients struggle more in “letting go” and allowing themselves (and their partners) an amicable, efficient split.
The clients that do succeed in this area take a quite different approach. They are able to look at their lives as a series of stages – and that the end of one stage may mean the beginning of a new and possibly better stage in their lives.
They are excited for what awaits them and the newness of the life they will now lead. I find that this positive long-view approach means the world of difference to people trying to bring closure to a relationship that has ended. Often someone able to adopt this approach has come to terms emotionally with their split and has made a conscious effort to “play fair” in an effort to resolve the proceedings.
4. Quality representation
A quality lawyer can be invaluable in achieving an amicable separation or divorce.
- A quality lawyer will recognise a client who is having a hard time dealing with the emotions of their family law situation and will refer the client to professionals who can assist.
- A quality lawyer will ensure that their client makes full financial disclosure and that the other side has made a similarly complete financial disclosure to them. This allows the client to make an informed decision which can expedite the settlement process.
- A quality lawyer will temper client expectations and ensure that the client is made aware of what constitutes a fair resolution as opposed to a “win”. A quality lawyer will recommend compromise in situations where it is appropriate. Conversely, a quality lawyer will push the other side when necessary to ensure a fair resolution.
- Quality lawyers have often handled dozens (if not hundreds) of cases similar to their client’s. They will impart their experience (both legal and practical) to the client. The insight of a quality lawyer can expedite the divorce or separation process immeasurably. Proceeding without a lawyer (or a quality one) deprives the client of a trusted advisor who makes the process easier, more efficient and often more amicable.
At the end of the day, there is no great secret to how to have a more amicable divorce or separation. The more unselfish, cooperative and conciliatory each party is goes a long way in determining how the matter proceeds.
The challenge in family law cases is that often, had each party been able to act in an unselfish, cooperative and conciliatory manner they would likely have not split in the first place.
Having the guidance and advice of a quality lawyer can guide clients in these difficult life situations to the right answers and to understand the process they are travelling through. Having a good support system of family, friends and (if necessary) counsellors can assist clients in dealing with the emotional stresses that present with divorce or separation.
Lastly, it is vital to remember that although divorce or separation does mark the end of a stage of your life, (and sometimes it is the end of a stage that wasn’t that good), it also marks the beginning of something new, something that can be good and something for which the possibilities are limitless.
Jamie Roche, Senior Solicitor
Family Law and Estate Law teams
Watkins Tapsell Solicitors
