The process of separation is difficult. It is often a time when emotions and conflict are at their highest.
If you have separated, and especially if you have children, the last thing you want to do is go to Court to have your matter heard in an open Court room.
Except for the exceptional cases, going to Court is not necessary for parties to reach a final agreement regarding the division of their property or parenting arrangements. In fact, it is far better for separating parties to come to an agreement than for a third person to make the decision for you.
Sadly, a lot of clients who come to see us for the first time are unaware of the fact that there are other options for them to settle their dispute aside from Court intervention. The good news is that after their first meeting with us they walk away with the knowledge and understanding of each option available to them and the likely outcomes.
In our experience, we have found there to be 7 common factors that have been present in matters that resolve without the need for Court intervention. We have listed these factors below with the hopes that this information will help you to achieve a similar result.
1. Participate in Counselling.
Commonly grief and anger are feelings experienced during separation and/or divorce. It is difficult to be forward thinking when you are not in the best frame of mind. Counselling can help you deal with your grief and anger so that you can move forward with a sense of purpose and plan for your future.
Being in the right frame of mind increases your ability to negotiate a settlement and therefore avoid protracted conflict and Court intervention.
2. Retain a good family lawyer.
Avoiding Court does not mean avoiding lawyers. Believe it or not, your lawyer plays a pivotal role in maintaining whatever sliver of relationship you have left with your former spouse or partner.
It is often the case that a great deal of negotiation occurs through lawyers before a settlement is reached.
When choosing a family lawyer, make sure they have the right attitude as well as knowledge and experience. There is no sense in retaining a lawyer who is experienced and knowledgeable but who lacks the ability to explore options for settlement through correspondence. In other words, one who considers their office to be the inside a Court room.
There is no room for aggressive or confrontational tactics in family law. At the end of the day, particularly in parenting matters, the primary objective is to achieve an outcome that is in the best interests of your child.
You need a forward thinking and perceptive lawyer who will get you the best outcome in the least destructive manner.
If you do not want to retain a lawyer on an ongoing basis for whatever reason, then you should at least obtain preliminary advice with respect to your options for settlement.
Also, get advice with respect to your settlement proposal. If a proposal put forward is reasonably achievable on the evidence, then that increases chances of a resolution.
3. Participate in Alternative Dispute Resolution (ADR).
Aside from the fact that you cannot initiate parenting proceedings in Court without a certificate from a Family Dispute Resolution Practitioner (except in exceptional circumstances), participating in effective Alternative Dispute Resolution (ADR) can prevent a further deterioration of your relationship which in turn may result in an early resolution of your matter without resort to litigation.
Negotiation and Mediation are two useful ADR methods in family law.
Negotiation is the method of discussing your matter with your former spouse or partner with the aim of reaching a resolution. This can be done between yourselves or through your respective lawyers.
Mediation is where an independent third person (the mediator) assist parties in negotiating a settlement. Again, parties can attend mediation on their own or have their lawyers present.
The key to effective ADR is preparation. There is little point in engaging in ADR to reach a property settlement if the parties are not fully aware of each other’s financial circumstances or the property pool to be divided.
It is always a good idea to seek the assistance of a lawyer if you intend to participate in ADR. Your lawyer can assist you in more ways than you think and having a good lawyer will most definitely increase your chances of a resolution.
If you think mediation is the way to go, then make sure you do your homework when selecting the mediator. Selecting the right mediator can make all the difference.
4. Consider advice from family and friends with a grain of salt.
Receiving advice from friends and family is almost unavoidable. We all have that friend (or family member) who thinks they know everything they need to know about your situation and they “know what’s right for you!”
While family and friends provide great emotional support, they are not lawyers and the advice they give to you is not based on their legal knowledge or experience but their subjective feelings.
Be mindful that each case is different and comparing your circumstances to someone else’s will only result in unnecessary protracted conflict as you will be forever trying to achieve a result that is or may never be achievable.
5. Be careful with what you read on the internet.
If you are going to consult the internet for information about divorce and separation, make sure the information you read is relevant and accurate.
A good starting place is a law firm’s website. That way you can be sure that blogs (such as this one) will be helpful rather than detrimental to your case.
You may also benefit from subscribing to a law firm’s Newsletter to receive useful information on a regular basis.
6. Be mindful of the ramifications of going to Court.
Going to Court is not a simple process and there are obvious and substantial benefits to resolving the distributional matters of a divorce without resort to Judge adjudication.
The financial cost of litigation is minimized or in some cases avoided.
The pain and stress of a formal adversarial proceeding is avoided.
Studies have shown that children benefit from their parents agreeing on custodial arrangements.
A mediated or negotiated agreement allows the parties to avoid risks and uncertainties of litigation.
Given the current Court delays, you could be looking at a hearing date that is in two years away from the date you initiate proceedings. Reaching an agreement will save you time and allows you to proceed with your life sooner.
Also, an agreement between the parties is likely to remain acceptable overtime as opposed to a result imposed by Court.
7. Make sure your agreement is made binding.
Once you and your former spouse reach an agreement there is one final step you should take. That is make the agreement binding! There is nothing worse than an agreement being reached only for one party to turn around two weeks later and say they change their mind.
While the agreement is fresh, complete and file an Application for Consent Orders together with the Consent Orders so that the Court may make the agreement into binding orders.
It is harder to bring proceedings back to Court once final orders have been made than it is to initiate proceedings.
It is always a good idea to obtain professional family law advice with respect to your agreement to ensure that it satisfies the legal requirements. In parenting matters the agreement must be in the bests interests of the child and in property matters it must be just and equitable.
It is also a good idea to have a lawyer prepare the Application and the Orders themselves to avoid the Court rejecting them on the grounds of insufficient drafting.
We are mindful that these tips may not be appropriate to apply in all circumstances. Particularly in cases where there are allegations of violence or fraud, or where there is a genuine intractable dispute or degree of urgency.
This information is general in nature and is not intended to be relied upon as legal advice. We suggest that you obtain proper legal advice before acting upon anything you read in this article.
Contact Szabo & Associates Solicitors
Retaining a lawyer is not a decision that should be taken lightly. Who you retain and the way in which they handle your matter may have significant consequences for you.
Changing your lawyer part way through a matter can be stressful, costly and time consuming, so it is important that you retain a lawyer that has the right experience and understands your needs.
You have nothing to lose, only something to gain, by meeting with one of our experienced lawyers.
Book a consultation with our Family Lawyer today or call (02) 9281 5088 for a free 10 minute consultation.
We want to get you to the point where you can say, “I feel ok now, I have spoken to a lawyer and I now know exactly what my options are.”