Can you afford to Divorce?

Can you afford to Divorce? – Article written by Olivia Maragna and published by brisbanetimes.com.au


My Comment:

“I think another expense is the high costs of legal fees that can also flow from relationship breakdown.

My view is the importance of planning for high legal fees will depend upon the nature of the relationship; and likelihood of the separation being acrimonious. Bigger fights mean bigger fees and it’s no surprise to people who have experienced family law litigation that lawyers are the ones who can often profit the most.

I often tell my client that the smartest and least expensive way to resolve a dispute is to follow these steps:

  1. Before starting to negotiate, each party should obtain independent legal advice from a lawyer skilled in family law. Lawyers, who dabble in family law, don’t know the law, or who behave in an inflammatory manner can cost you money. My view is, to avoid doubt see a lawyer who is an accredited family law specialist;
  2. Armed with accurate advice, commence negotiation. Discuss with the other party what you need or want based on what you have been told the range of outcomes may be. There are 2 ideas here. Firstly, if both parties have had proper advice, the range of outcomes communicated to them will likely overlap. When there is an overlap in the advice both parties have received, settlement is more likely because there is common ground. Secondly, rather than negotiate by way of “Dutch auction”, try and form an understanding of the other party’s needs and motivations. If the parties understand each other it may be possible to think outside the box and achieve the settlement most mutually beneficial;
  3. Negotiate by email or in writing. Settlement communications prima facie can’t be used in court by virtue of section 131 Evidence Act 1995 (Cth), and the common law regarding privilege attached to settlement negotiations. If in doubt you can add the words, “without prejudice” to your communications;
  4. Once an agreement is reached, return to the lawyers to have the agreement drafted into the proper form.

Having a consent order application, parenting plan or binding financial agreement drafted without the costs of the “back and forth” between lawyers can save a lot of money.

If you can’t communicate with your spouse directly; or if there is power imbalance through intimidation or family violence; the lawyers and mediators may be the only option to assist with the negotiation process.

If it is the case there is acrimony, negotiation is difficult or court is unavoidable, there are some strategies you can use to reduce your legal fees:

  1. Most lawyers time cost so limit your communications to what is absolutely necessary;
  2. Provide detailed instructions in writing so your lawyer doesn’t have to chase you for information;
  3. Ask your lawyer if they can provide you with blank court family law forms in a Word format. If not, please note all of the court documents and some very useful fact sheets can be found on the Family Court and Federal Circuit Court websites (we have commonly used forms available on our website). Providing your lawyer with instructions in this format can reduce time and thus costs to you;
  4. Provide your lawyer with a detailed relationship chronology in a Word format. The chronology should start at the beginning of the relationship and specify all of the important dates and occurrences. You should do a different chronology for property and children. In documents such as this stick to the facts and avoid statements of opinion or submissions;
  5. If your lawyer asks you to obtain information or documents, be proactive. Costs can be reduced by avoiding the necessity for the lawyer to chase you up; and if the matter moves quickly without dragging on costs will likely be reduced;
  6. Consider the “cost benefit analysis” when examining the other party’s proposal. Is what you’re fighting about worth the cost? Costs in family law matters are not just financial. There is a lot of stress associated with the process and if children are involved it is very beneficial to try and preserve a future working relationship with the other party;
  7. Read your costs agreement and ask for estimates of costs before major work is undertaken.

Reducing costs can be achieved by working with your lawyer and by keeping the issue of costs clearly understood between you and your lawyer.”

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