A good divorce?

A good divorce, is there such a thing?

If you are thinking about separating or have recently separated you are probably trying to work out what to do next so that you don’t make your situation any worse than you feel it already is.

We often hear about the guy who “got taken to the cleaners by his ex-wife” or the former husband who declared himself bankrupt so that he wouldn’t have to pay half his salary in child support. However, for every bad story there are countless other stories of parties separating amicably and remaining civil to one another throughout the process. Occasionally we see separating couples ending up as friends after it is all done and dusted.

If you are wanting your separation to go as smoothly as possible and come out the other side financially and emotionally strong there are sensible guidelines you can follow to protect your financial security and your children’s wellbeing.

There are many lessons that can be learned from those couples who manage to separate well.

Four of the best lessons to survive your separation and have a good divorce are:

Lesson 1 – Compromise

… and then think about compromising some more! This may be a really hard lesson for many of you reading this to believe but, trust me, if you cannot get the hang of compromising, at least a bit, then you are probably going to have a very long and drawn out family law matter. Put simply no one is a true “winner” in family law matters. There is only one pool of matrimonial assets to divide and so each of you are going to end up with less of it than you had before. If children are involved it is unlikely that they are going to be with you every minute of every day. However before compromising you must get specialist advice. Don’t compromise on anything that is a must to stay strong about, understand what you are giving away and “trading off” before any negotiations begin. Adjusting to a new reality can be extremely painful and feel really unfair but it is critical to do your best with the situation you are now facing so that you don’t end up losing even more money to the lawyer and more time (your life!) to the process.

Lesson 2 – Reflect

All significant life changes provide us with an opportunity to rethink our priorities, and if we are brave enough, reinvent ourselves. Separation can be the start of a better life. We often see people steering in a completely different direction as a result of their separation. Stay at home mums sometimes undertake study, return to the work force and truly enjoy the new sense of freedom and independence that it brings. Fathers that have been working tirelessly in the office can now “lean out” a bit and enjoy collecting their children from school one or two afternoons each week. Being able to have some insight into your current circumstances can help you work out where you want to go from here. However this transition, like any other, takes a lot of time and a great deal of support and guidance. Don’t make any decisions on the hop. Undertake a thorough analysis and stay strong to what you truly want to achieve. It is understandable that many people talk about “broken promises” and “failed dreams” however separation can also be the start of creating new dreams for both you and your family.

Lesson 3 – Ask Questions

We live in an age of information – it is everywhere… you can Google anything… at anytime however it is important not to mistake all of this information for knowledge, experience and expertise.

How many DIY jobs do you hear of going wrong? Ask any hospital registrar what fills up the emergency department of their hospital on the weekend and the resounding answer is “failed DIY jobs” … people falling off unsecured ladders, slicing through their fingers and suffering injury at the hands of an out of control nail gun are regularly seen. It is one thing to make a mistake with a home paint job or back step renovation but a very different story with your own children or your financial security. With issues as important as your children and your financial future you should leave it to the experts or at least heavily lean on them along the way.

Lesson 4 – Brainstorm

We are all taught to do it at school and some of us continue to be good at it in our adult lives, even finessing the art. Many of you might write copious “pros and cons” lists or Venn diagrams or mind maps. Whatever strategy you use just make sure it works for you and by this I mean make sure it helps you identify what you want to achieve. You need to have goals in your separation so that you can have a good divorce. You may decide that keeping the house is essential to your stability and wellbeing. If that is the case insist that your legal team devise their strategy around your goals. Think about your goals like a lighthouse on the coastline that steers the ships away from the treacherous shore and navigates the safest path.

These 4 lessons to a good divorce are by no means an exhaustive list. Many other lessons spring to mind. I have written elsewhere about flexible thinking in family law matters for example and also about the importance of being realistic.

Don’t think for a moment that your separation will be easy or pain-free or even quick. It is likely to be tough, confusing and at times you will feel downright wretched. However it will get better and you will secure an outcome and eventually it will become part of your story. Believe it or not many of you will go on to re-partner and a number of you will remarry – don’t scoff at this suggestion. This is what the statistics show and statistics (I am told) don’t lie!

If you would like to talk more about your separation and ensure that you have a good divorce we are only a phone call away. Call me, Lisa Wagner, on 9437 0010 to discuss your family law matter, or email me on enquiries@familylawyersdw.com.au. Doolan Wagner Family Lawyers offer Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners who can help you achieve a good divorce.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Investing Wisely In Your Separation

Are you separated and trying to reach an agreement with your ex?

If you are then this article may help you keep your legal costs down in that process.

Anyone who has ever renovated a house in Sydney will be able to tell you whether they overcapitalised or not in the process. For those who have spent too much money on their renovation they will often explain it away by saying “we’re there for the long haul” or “it’s our forever home”.

You often hear of house renovation budgets “blowing out” and contingency allowances quickly disappearing. This is in circumstances where there appears to be many rules of thumb about what you should spend on almost any part of your house…”no more than 3% of the total value of your house on a bathroom…and I think 5% on the kitchen”. Painting and landscaping are other parts of the makeover process where investment guidance is readily available and almost always free of charge.

So, if people regularly get the “cost benefit” analysis of renovating a Sydney home so wrong when there is so much information and guidance available, what chance does that couple have to retain a sense of proportion if their relationship fails and they separate?

When couples are faced with a very different and much less exciting type of makeover, aka a separation, how can they maintain a “cost benefit” analysis and ensure that the “end product” has been worth the investment?

As a start it is critical to identify your goals. While not intending to be an exhaustive list, here is a list of what we commonly see people value highly in a separation:

  • Keeping the former matrimonial home.
  • Being able to continue to parent their children in a meaningful way.
  • Ensuring the children stay at their current schools or attend the high schools that were originally chosen for them.
  • Retaining their superannuation entitlements.
  • Preserving a respectful relationship with their former partner.
  • Securing their financial future.
  • Maintaining their current standard of living.
  • Staying connected to their social/support network and the children’s local community.

Next, you should prioritise these goals. Choices and trade-offs may need to be made as you begin to separate and set-up two separate households.

For a large number of separating families their principal place of residence represents a large proportion of their net matrimonial wealth. If you want to stay living in your current home and it represents a significant part of the pool of your matrimonial assets then you may need to forego a superannuation split in your favour as well. If this is not an outcome that sits comfortably with you then now may be the time to consider “downsizing” your home.

If sending your children to a private secondary school remains high on your list of priorities then you may need to rethink your current standard of living. Alternatively, you could look at ways of boosting your income and earning capacity so that you can better contribute financially to what will be an increase in expenses due to a duplication of running two households.

It is unrealistic to expect that you will be able to achieve all of your goals in your separation and very important that you decide which ones to prioritise and what financial and emotional investment you will make to secure those goals.

You need to make smart investments in your separation.

Thirdly, don’t get side-tracked spending hundreds of dollars on legal fees arguing about the return of a $20 camp mattress when you can buy a replacement one at next to no cost. That is not smart. Setting up a new house with furniture can be really expensive as can replacing items of furniture that you have agreed can be taken from the home by your former spouse. However keeping a sense of proportion about these issues will free up your reserves, both financial and emotional, to invest in the big issues that matter most to you.

Two final points:

  1. Stay committed. Separation can be a time consuming process. Don’t lose sight of the end game. Grab all the support you can. Renovating a house requires scaffolding and you will need to surround yourself with your own type of emotional scaffolding to complete the process.
  2. Remain flexible in your thinking. If the investment in achieving what you thought was a highly prioritised goal appears too great, be smart enough to explore other alternatives. There is usually more than one path to travel following a separation.

So, if you are having difficulty working out what you really want to achieve in your separation and can’t decide which are the best options for you then get in touch with me, Lisa Wagner from Doolan Wagner Family Lawyers on (02) 9437 0010 or enquiries@familylawyersdw.com.au. We offer qualified Family Dispute Resolution Practitioners and accredited family law specialists to help you achieve cost effective and workable family law settlements.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

What to do when children don’t want to go home

What do you do if your children don’t want to go home after contact? Have you ever been faced with this dilemma at contact changeover times?

We are frequently asked questions like “Do I have to return the children?”

These sorts of questions often arises in the context of returning the children to the parent with whom they normally live after they have been away on holidays with the other parent.

Of course, the right answer to that question is only able to be given when all of the circumstances of the particular family situation are known. However the paramount consideration in all parenting cases is the best interests of the children. So how does this overriding principle help answer the question?

Essentially, it is necessary to weigh up all the necessary factors and then balance the two primary considerations namely:

  1. The benefit to the child of having a meaningful relationship with both of his or her parents; and
  2. The need to protect the child from physical and/or psychological harm from being subject to or exposed to abuse, neglect or family violence.

These primary considerations must be considered in every parenting case.

In circumstances where there are no parenting orders in place the Court must consider all relevant matters including the age and wishes of the child, his or her relationship with both parents, the attitudes each parent takes to promoting the child’s relationship with the other parent and the current circumstances of the child and how those circumstances have arisen in order to help it balance what is best for the child.

So, if a child of tender years who has enjoyed a wonderful “Disneyland-esque” type holiday with the parent with whom they do not normally live, throws a tantrum at the prospect of returning to the routine of home then it is unlikely that those facts will support the “holidaying” parent retaining the child. This is even more so in circumstances where that parent may have coaxed or influenced the child to behave in that way.

The Court would expect such a parent at the end of the holiday to behave responsibly and in the best interests of the child and return him or her to their primary home notwithstanding that they might have been having a meltdown.

On the other hand, if two teenage children, over the course of an extended period of time (be it holidays or not), at the end of a holiday disclose certain concerning matters relating to the home of the other parent and indicate strongly that they wish to stay with the “holidaying” parent then such circumstances may warrant a change in the living arrangements for those children. However it is only in very limited situations that any change can be enforced simply by retaining the child and not taking steps to formalise this arrangement. The expression “possession is nine tenths of the law” certainly does not apply when it comes to children, nor should it.

The appropriate course in all cases, including where there is an unacceptable risk to the child, is to file an urgent Application setting out the Orders you seek, namely for the child or children to live with you and providing an Affidavit in support of that Application setting out the reasons for the Orders sought. These reasons may include:

  1. The children are refusing to go to school if they are returned to their “resident” parent;
  2. Or, as is commonly the case, the children are threatening or actually running away; or
  3. In more difficult cases a child or children may threaten harm to themselves or to others.

If Court Orders are already in place which require a parent to return children to the other parent at a certain time and those Orders are disobeyed then the breach can result in a parent being found in contravention of the Orders and facing penalties including fines and/or imprisonment (however this rarely occurs). It is important to understand though that a parent who has been able to show a “reasonable excuse” to explain why they have breached a parenting Order can successfully defend contravention proceedings.

At all times it is crucial to place the child’s best interests as your priority. Taking a step back and reflecting on the overall situation can sometimes help a parent to make the best decision in what can be understandably an otherwise extremely harrowing dilemma.

If you are experiencing these dilemmas and really don’t know what step to take next or how to handle the situation and do what is best for your kids get in touch with me, Lisa Wagner from Doolan Wagner Family Lawyers on (02) 9437 0010 or enquiries@familylawyersdw.com.au. We offer accredited family law specialists to help you with parenting and all family law matters.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Family Dispute? Don’t go to Court

Are you going through a family dispute or thinking about a separation?

If you are, then you should continue reading this article as it contains valuable information.

Family dispute and separation are widely understood to be one of the most stressful experiences that you can live through. Doing what you can to keep your emotions in check and to continue functioning in the middle of a family crisis is really hard.

Family disputes rip at the core of who we are, lead us to question ourselves, and have the potential (if not handled well) to undermine our children’s wellbeing.

If you are separating and involved in a family dispute it really helps that you do all you can to manage the “fall out”. It is like adopting a “damage control” approach. No one is going to end up a winner through the experience but with the right strategies you can emerge from your separation and divorce with your integrity intact and your respect for your former spouse or partner preserved (mostly).

Staying out of Court is probably the most desirable and highly valued “damage control” strategy for anyone in the middle of a family dispute.

Presently the delays in both Sydney Family Court and the Sydney Federal Circuit Court are such that you are likely to be waiting at least two years before a Judge can hear your case if you can’t reach an agreement with your former partner. This is significant in at least three ways:

Firstly, in the meantime you are left in limbo and simply cannot get on with your life.

Secondly, you are likely to spend tens of thousands of dollars on your lawyer who will be required to assist you prepare and present a lot of paperwork and attend to day to day matters that arise while you are waiting; and

Thirdly, things change. The pool of assets that was available to divide at separation may no longer be there or on the flip side, the available pool of marital assets may have increased significantly in value (making it more difficult for you to refinance and retain a property that you were perhaps wanting to try and keep).

Going to Court to resolve a family law dispute (at least without exhausting other avenues first) is nearly always never ever the best option.

So what other “damage control” strategies can be employed?

Collaborative law, negotiated settlements, mediation, arbitration and family therapy are all good options. It is usually not a case of “one size fits all” and you should discuss your particular situation with your own family lawyer who is hopefully an accredited specialist and therefore usually more adept at discerning the right “fit” for you.

Family dispute resolution has a high success rate for most separating couples. Family dispute resolution provides a mutual and impartial environment to discuss all of the issues and challenges that arise at separation. It is a flexible process that supports your communication with your ex by adopting broad rules of engagement.

The likely success of any family dispute resolution is a result of a variety of factors. In my experience three of the most critical ingredients are:

  1. Competence;
  2. Confidence; and
  3. Connectedness.

In short this means that if you are feeling like all reasonable out of Court options have failed and you are no longer able to even talk, text or email your former partner and you want to stay out of the Family Court you can consider a successful resolution of your family law matter with family dispute resolution if:

  1. You engage the services of a qualified family dispute resolution practitioner (they must be registered with the Attorney-General’s department) and also retain an accredited specialist family lawyer to advise you of your options, responsibilities and your likely outcomes – the “competence” factor.
  2. You feel confident in both the process and the people. This factor requires you to rely on your gut instincts to hire the right people – the “confidence” factor.
  3. You look for that special “x factor” – some practitioners are highly qualified and/or highly personable but if they cannot connect with each of you and pull it all together it will not work out well and you will be back in “damage control” mode – the “connectedness” or “x factor”.

This “Triple C” plan can save you thousands of dollars on legal fees and limit the months of your life that would be otherwise lost if your family dispute ends up in the Family Court.

In my experience, adopting a “Triple C” family dispute resolution plan if you separate can prove very successful. It is one of the best insurance policies you can get to stay out of the Family Court.

So, if you are living through one of the most stressful experiences that you can ever go through, are exacerbated by your options and feel that you are pulling your hair out trying to secure a resolution with your ex then seriously consider getting in touch with me, Lisa Wagner from Doolan Wagner Family Lawyers on (02) 9437 0010 or enquiries@familylawyersdw.com.au. We offer qualified family dispute resolution practitioners and accredited family law specialists to help you sort out your family dispute without going to Court.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Divorce, Is Delaying A Settlement Wise?

Have you recently separated or have been separated for a long time but haven’t yet done anything to legally formalise that separation? If you are in this situation then you should really keep reading this article to find out how wise it is to delay resolving your matter once you decide that your marriage or de facto relationship is over.

Increasingly we have been asked to represent spouses faced with a claim for property settlement by their former spouse some time after separation. In one instance the delay was in excess of a decade. Often these matters are in circumstances where the spouse making the claim originally represented to their former spouse that they wished to forego any interest that they may have had in the matrimonial property.

What does the Family Court do in cases like this? Can a party who has separated years ago but never made a financial claim change their mind down the track and claim a share of what the party who was left behind believed belonged entirely to them?

This was the very question that the Family Court was asked to determine in the case of Bevan & Bevan (2013) FLC 93-545.

In that case the parties had largely lived apart for eighteen years. After separation the husband, who was a doctor, returned to the United Kingdom to work. He gave his wife a Power of Attorney and told her that she could keep all the property in Australia for herself and the children saying that his life would be built elsewhere.

The parties divorced in 2010 however within days of the twelve month limitation period expiring the husband filed an Application for settlement of property claiming a share of the Australian assets which he led the wife to believe at separation were hers alone.

The Court considered both arguments. The wife asserting that:

  1. given the husband’s initial representations and his continued conduct consistent with what he had originally said he should be prevented from receiving any property; and
  2. the husband’s significant delay should be taken into account preventing him from now coming to Court and claiming a share of property that he had originally promised would belong to his ex-wife.

The husband, wishing to trigger the power of the Court to make a financial adjustment in his favour, simply relied upon the contributions he had made to the marriage and the fact that he had made an Application to the Court within the twelve month period of the Divorce Order being made which is the prevailing legal requirement.

Ultimately the Family Court held that it would not be just and equitable to interfere with the existing property interests of the wife. The husband, in essence, was held to the promise he had made to his wife at separation of foregoing any financial settlement entitlements.

It should be remembered that the decision in this case, like any other in the Family Court, turns on its particular set of facts.

If you would like to talk about your particular family situation, especially if you have been separated for a long time, then please do not hesitate in calling me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 or email me on enquiries@familylawyersdw.com.au. We have Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners who are experts in all areas of family law and can help you to take the next step.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.