To go to Court or not to go to Court?

Is taking your matter to the Family Court really the only answer?

It might be, but then again it might not be.

Cryptic we know.

 Let us tell you from experience, the only thing you will get from Court is finality as well as a large bill for legal fees.

Of course we understand there are matters that simply must go to final hearing, but before you decide court is your only option, consider what we have to say.

Advantages of going to Court

1.       You know your matter will move forward.

2.       A timetable will be set, which parties have to comply with (time in the court system will confirm this timetable can be flexible).

3.       A hearing day will eventually be allocated.

4.       Someone will make a decision.

Doesn’t sound bad does it, trouble is, will you get the outcome you seek or need? Probably not, with the decision not remotely resembling what you wanted.  

Going to court, most people would agree is a bit like slamming your fingers in the top draw of your desk and waiting for the pain to subside, which it will in due course.  

Disadvantages of going to Court

1.       It is expensive, with costs ranging from twenty to fifty thousand dollars or more.

2.       Whilst a decision will be made one day, it can take time, with some matters taking two years (or longer) to be finalized.

3.       A third person that knows almost nothing about you and your ex partner will make a decision on what to do with your property and children.

4.       It is time consuming. There will be numerous court appearances you will be required to attend.

5.       Emotionally the experience can be draining and damaging to your health, work and maybe even new partner in your life. Often new relationships do not withstand the rigor of Court.

6.       At each court appearance you will be confronted with your ex partner, which may or may not go well.

7.       Long days in Court with nothing happening can be dreary.

8.       You cannot focus your attention on moving on with your life as Court often consumes people.

9.       It can be confronting.

10.   Your life will be examined inside out.

This is not an exhaustive list and only given as an example of what might happen at Court. Each case is different. Your experience might be a better one than the doom and gloom predicted by us. Most people we have encountered did not like the experience nor did they think the outcome was worth it.

In fact, a lot of people likened the experience as being tied to a wooden pole naked. beaten senseless and eventually being released with a pair of socks as well as several insults, while having to pay a fortune for the experience and outcome.  

Who is to blame for this?

No one and everyone, with the people working in the system trying their best to make it work for the people who need to use it. A shortage of funding for the Court means a shortage of people to hear cases, thus the backlog starts. 

The ‘beating’ you will suffer along the way will mostly come from your ex spouse who will have nothing nice to say about you. Years of hurt will be unleashed by everyone.  

What is the alternative?

Believe it or not there are alternative options available.

A movement has taken momentum called Collaborative Law. It is about focusing on outcomes both parties come up with as opposed to slogging it out in the Court arena.

According to Lawyers who practice in this area it empowers people if they have control over the outcome, ultimately leaving people feeling much better about the separation process.  During this process additional professionals including psychologists, financial planners and accountants are consulted to assist in coming up with workable solutions in both property and children disputes.

Of course you do not have to use a collaborative lawyer; you can ask your own lawyer for other options, including mediation. Or you can simply start by consulting a financial planner or your accountant to find out what it is you need to move forward instead of going to a lawyer to ask ‘what am I entitled to’.

Final words

Before you storm off to find out what you are entitled to and start the usual war of words between solicitors take a moment to step back. Think what, if anything, this will achieve as well as how it will impact on your life over the next few months/years, then see if there are other avenues open to you. Perhaps it is time to take the road less travelled.  

Whichever way you go come back to visit our site to see if there are other posts that might help you along the way.

Good Luck

How much am I entitled to?

Let us assume for a minute you have separated and there is one burning question you must simply ask, namely how much am I entitled to?

You go and see a lawyer and more likely than not leave terribly deflated.

Why?

Because you may not have heard what you wanted to hear, or you were given a range of possibilities and not the magic figure you were after. Sadly, there is no mathematical formula to work out what any one is entitled to at the end of a relationship, but steps we follow.  

This post is to reiterate what your lawyer probably told you and may or may not have taken in at the time.

The way the family court works out a property settlement under the Family Law Act 1979 is as follows:

1.       What is the asset pool? The first step is to identify what everyone owns jointly or separately (less any debts). Property includes cash, shares, business interests, real estate, investments furniture, motor vehicles and superannuation (not an exhaustive list).

2.       Assess the contributions of each party prior during and after the marriage/relationship. This includes financial and non financial contributions of the parties. For example if someone owned an asset before they started living with you, this will be taken into consideration, as will lump sum payments received during or after the separation. Once the contributions have been assessed they are given a percentage value.  This step will be discussed in more detail in later posts.   

3.       What, if any, future needs are there?  In this step the court looks at the age and health of the parties, income and financial resources, if either party has to care for a child, the duration of the marriage and the capacity to obtain gainful employment (again to name but a few).

4.       Is it just and equitable? This is the step least able to be predicted by lawyers. In this step a Judge or Magistrate has to examine if the proposed orders are fair (more often than not client’s tend to think the entire outcome is not fair). It is important to remember the court has wide discretion to make an order that it considers proper in all of the circumstances.

 If you understand the process of how a decision is made it can help you understand why a lawyer cannot simply give you a figure and tell you how much you are worth.

Family lawyers often talk about ranges and percentages, leaving you, the customer, confused and unsure.

Sometimes a better approach in this situation might be to work out what you need to make the world go around and use that as a starting point.

To give an example of how getting stuck on a percentage can be of no use, we highlight a case where a mother of young children wanted over fifty percent of the asset pool. One of the reasons was she had the primary care of three young children and limited earning capacity.

The husband had brought the assets into the relationship, reducing the wife’s direct financial contributions and it was a relatively short relationship, lasting in total about six years.

 The lawyers (for both sides) agreed the case should be decided around thirty five percent. None of the settlement mediations brought the parties any closer together, each getting more entrenched in their position. Finally, after spending over fifty thousand dollars each, a final decision was made giving the wife less than fifteen percent of the asset pool. Despite the decision being an appealable one, the wife chose not to appeal.  

Perhaps if the case had started with each party not focused on what percentage they were after, it might have produced a better outcome for the wife.

When you take a firm stance about what you think you are entitled to, make sure you are prepared to be disappointed. A lawyer should never promise you an outcome or assure you that you are worth a particular percentage, as this will not help you try and negotiate a settlement you are able to live with.

  

Financial Strategy Post Separation

Being Financially Savvy


Bank accounts are the first vulnerable item to look at after any separation. By now you will have set up your own account (and if you have not done so you will leave immediately and do so) and made sure your wages or Centrelink benefits are paid into same. Where does that leave other accounts and outgoing such as mortgage payments or loan payments and who should pay them?

Mortgage – to pay or not to pay?

More than likely you will have purchased property in joint names with a joint mortgage. This means that both of you are equally responsible for mortgage payments and if there is a default the bank will not care about your separation and simply pursue both of you (usually the person with a higher income has more to lose).

However, it may not be practical for you to pay your share or the entire mortgage payments, depending on your individual circumstance. The first thing you should do is make a budget and work out what you can and cannot afford (we are afraid that trip around Europe might have to wait until you have sorted out your financial affairs between you and your ex spouse).

If you are renting and not living in the former matrimonial home there may not be enough money to go around for you to pay your share of the mortgage. In such a case, particularly if the other person is still living in the home, it might be reasonable to expect them to pay all of the mortgage payments.

However, it all becomes a balancing exercise of what works and what does not. A court would take a dim view of a person who did not pay the mortgage simply because they did not want to and thus a valuable asset of the relationship is lost. This will be of little consolation if the asset is lost and there is nothing to divide at the end of the matter.

When deciding what to do about mortgage payments think long term. How would a bad credit rating affect your future prospects of obtaining another loan or mortgage? If you genuinely cannot meet your share of the mortgage you should have a meeting with the bank manager and discuss options with them. Banks can do things like switching a loan to interest payments only or look at a hardship application. If for any of this you need the consent of the other party and they will not give it, you might need to commence proceedings and obtain some interim procedural orders.

At the end of the day both of you should work on preserving assets for division, as both of you will benefit.


Bank accounts with money in them – to take it or not to take it?

Often people wonder if they can take joint savings out of a bank account or even spend the re-draw on the mortgage.

As you are debating what to do about joint savings, and it might be the case you really need the money, we remind you again of our previous saying possession is nine tenth of the law. What invariably happens is that one of you will be trusting and convincing yourself it is not nasty and there is no need to get nasty and before you know it the ten thousand dollars in the joint account are gone. Now it is too late to do anything about this.

Of course your lawyer can write to your ex spouses lawyer and threaten the end of the world, however, by the time your matter comes before a Judge or Magistrate it will be most difficult to get anyone interested in adding the money back into the pool (not the swimming pool but the asset pool, what you and your ex spouse own).

If you are unsure the best course of action is to take the money and put it into an account where it cannot be accessed or spent. That way you are protecting it from being spent and it will still be there for division when your matter is either determined by way of final hearing or you both reach agreement and sign a set of consent orders.  

Do I report the car as stolen or not?

You might be driving the family car which happens to be registered in your ex spouses name. Your ex has asked for it back and you have said no (perhaps using slightly stronger language). Now your ex is resorting to techniques of intimidation and bullying, telling you that they will report the car as stolen and you are not sure what to do.

At the end of the day the Police will not get involved in a property dispute between spouses. It is a matter that will be sorted out in the Family Court.

Beware though what might happen is that the ex, who by now is so angry at you for not doing what you are asked to do, they will simply go and take the car (assuming they have a spare key).

Again the Police will not be interested. It is still a matter for the Family Court. And again your lawyer can write letters at great expense to you but it probably won’t lead to the return of the car.

What to do? Make sure when you leave you have all the keys to the car and never leave it somewhere where the ex can simply get in and take it.

Conclusion

These are only some of the financial issues you will need to consider after a separation. In future posts we will revisit some of these and discuss them in more detail and try and draw on our experiences from years of practicing in the area of Family Law.

Possession is nine-tenths of the law

An odd statement you might think, but a very true one.

When people separate it is ugly and messy. Usually no thought or planning has gone into it, beyond the where will I live and shall I take the cat or dog. The step to leave is such a big one, in most cases, and when it is taken is taken hurriedly and without forward thinking and or really appreciating the effect leaving someone will have on them on a short and long term basis.  

Why, you might ask, is it important to plan and exactly what should be planned? Is it not enough to simply leave and start afresh? Maybe, however, at some stage people stop and analyse what they have done and realise they really should have taken the large photo of aunt Muriel in her wedding dress, or the antique grandfather clock inherited from great uncle George and it is at that point it will be too late to go and get it.

As the heading states, possession is nine-tenths of the law, which in practical terms means that whatever you are able to take with you at separation will be it.  

This might not matter we hear you say, and it might not, but then again it might.

It is not only sentimental items or furniture you need to think about, but there are documents, such as financial records, you may wish you had taken, particularly when your lawyer asks you for copies of these.

Again, we can hear you sigh and lament lawyers make things so complicated, and we might, but, these things are important.  

A lot of money, your money, is spent by lawyers embarking on the path of discovery. In non legal terms asking for financial disclosure. Think how much simpler and cheaper it would be if you had a set of financial records to give to your lawyer at the start. Naturally this is assuming you and your spouse kept records and those records are easily accessible to both of you. This is not an invitation to embark on a break and enter mission by the way.

Then there are the more personal things like photos, cd’s, dvd’s and other sentimental items you think you will get later. Later, may never come. Again, legal letters on these issues are costly and rarely achieve anything. How easy is it for the other side to simply claim they have been taken already, or will not be made available pending you fulfilling some demand from your ex spouse.

We can see you smile and think something like what a load of nonsense, I will simply go and get these things myself, after all we own the former matrimonial home together. Yes, that might be a way to do it, but don’t be surprised if the lock has been changed and access is denied. The last thing you want is to find yourself embroiled in the criminal justice system as well as the Family Law jurisdiction.

The most effective thing you can do is work out what the essential things are that you want to take with you at separation and do so.

Remember  - Possession is nine-tenths of the law!

Welcome

If you were hoping to read about interesting things like the latest movie or book titles or who won an Oscar, than you have clicked on the wrong blog. Whilst we would love to write about these things, alas we cannot. No, what you will be reading about on this blog will be far more mundane. What dare you ask are we writing about on this blog?

It's simple.

We are going to be discussing people separating from their husband/wife or defacto partners. Specifically we are going to try and inform and equip you with information to assist you in this most emotional and difficult time. There may be opinions offered from time to time, but we will try and keep these to a minimum. All in all we aim to update you on the latest decisions in the Family Law jurisdiction as well as any developments in the legislation and offer some practical tips on matters as they arise.

People who come to the legal system are often confused by its workings, particularly the Family Law arena and we hope by reading our blog you will find something to make you a little wiser and thus a little bit happier.

Happy Reading.

Nothing is worth more than this day!

Goethe