Tag Archive for: divorce

There’s no doubt 2020 has been a difficult year. I don’t need to state the obvious or recap on what everyone already knows. 

I personally know how hard 2020 was for many people because in the latter half of 2020 my practice has been really busy and many other family lawyers in Brisbane and on the Gold Coast have told me they are in the same boat.

My belief is that as family lawyers we are in the business of “damage control”. Our role is to help minimise the inevitable damage relationship breakdown creates financially, for children, in terms of our society, and I think many of my colleagues would feel the same way. It’s understandable that people feel cynical about lawyers and the law, it’s confusing, expensive and painful.  

Prevention is better than cure

One of the first things any good family lawyer should discuss with you is prospects for reconciliation. 

Frankly this is the best resolution possible. No legal fees, no halving your net worth, no seeing your children according to a schedule.

It’s better for society as well. Children grow up to be better adults in homes free from conflict with two parents, the social security system is less likely to be called upon and people typically live longer in happy marriages. That’s not to say that anyone ought to put up with a toxic relationship either.

There are many very talented Marriage Counsellors available to help reconcile a marriage or relationship and typically their services are more emotionally rewarding and (significantly less expensive) than the services of a family law solicitor.

The Family Law Act 1975 also mandates that lawyers have a responsibility to help people resolve their issues before moving to what the lawyers do, which is sorting out the separation. Section 12C and 12E Family Law Act 1975 require lawyers to provide information regarding reconciliation services.

The often cited and well-known quote from Abraham Lincoln applies here as it does in every area of legal practice:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Getting a Divorce

Since 1975 there is only one ground for Divorce in Australia which is the irretrievable breakdown of the marriage evidenced by a period of 12 months separation. 

Before this there were various grounds such as “adultery” etc that made this difficult area even more emotionally charged when it was required to establish fault by one party. On the other hand, some people may argue the current system makes it much easier to obtain a Divorce or encourages Divorce. However, the Family Law Act 1975 also provides that the principles to be applied by the Courts in exercising their jurisdictions must have regard to, inter alia (Latin for “among other things”):

  1. The need to preserve and protect the institution of marriage as the union of 2 people to the exclusion of all others voluntarily entered into for life.
  2. The need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children. (see section 43(1)(a) and (b)).

Section 50 provides some practical encouragement for people to be able to separate and get back together for a period of time. This section says that if a separation occurs, and the parties get back together (maybe to try and work things out), they can be back together for up to 3 months without having to “start over” on the 12 months continuous period of separation. 

For example, Romeo and Juliette decide to separate. They separate for 6 months then decide to get back together. They get back together for 2 months until Juliette realises Romeo just isn’t the same as he was 20 years ago, and they separate again. Juliette would still be able to apply for a Divorce after another 6 months and the 12-month period would not reset.

In terms of separation, this is a more complicated area of law than you might imagine. Section 49 of the Family Law Act specifies it only takes one party to the marriage make the decision to separate and that separation can involve people being 

Getting a Divorce is typically the final step usually the easiest and less complicated step speaking strictly in terms of the process. Emotionally it may be the most difficult.

A Divorce is simply “the termination of a marriage otherwise than by the death of a party to the marriage”. 

So, while many people may use that term to describe issues such as property settlement, parenting arrangements, spousal support, child support etc, the Divorce process only terminates the marriage.

All those big words

One of the interesting things about family law in Australia (and dare I say in other countries as well) is the different terminology different people use to describe aspects of the family law system.

Reason for this include the legislation changing the terminology over time. For example, in litigation involving children originally the terms were “custody and access”. In 1996 these terms were reformed to “residence and contact” and then in 2006 the terms changed again to the current “lives with and spends time with”. Nevertheless, in my experience very many people still talk about getting custody. Another reason for this (in my opinion) is that family law seems to be an area where people offer each other “barbeque advice”. This is the situation where someone knows someone who “went through a Divorce” and at a social function will provide information based on their experience as to how the system works.

The reason why all of this is relevant to the topic in the heading is because people often seek information regarding a Divorce when in actual fact a Divorce is just one aspect of a multifaceted system. 

If separation is inevitable you probably need information first and foremost. Family Law is incredibly complex and nuanced, and no lawyer can tell you what the outcome will be (ever). The more information we have in terms of the evidence the closer we get though.

Ultimately though our role is to help you to get you out of this situation with as much of your wallet, dignity and relationships intact as possible. 

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. 

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

Separation is a very difficult time for many people which is not surprising given that typically it combines some form of loss with fear and uncertainty as to the future. 

Family lawyers are not counsellors but a good family lawyer ought to be able to empathise with the situation clients find themselves in; and provide some guidance as to what the best course of action will be in their circumstances.

The best solution for separation is reconciliation provided that underlying issues are addressed. The Family Law Act 1975 section 12C and 12E create obligations on legal practitioners to provide separating people with information regarding reconciliation services that may assist them. 

Often however once people have made the decision to attend the lawyer’s office, they have already explored every option to save the relationship and have arrived at their point of no return.

Everyone’s circumstances are different but, in my experience, the following tips can help make the process less stressful, costly and timelier.

What to do when you have just recently separated?

The very first thing in my view is to get family law advice. You can typically do this in an attendance at a lawyer’s office for a “first meeting” with a lawyer. 

The difficult part for clients is knowing which lawyer to choose, which can also be the most important part. 

For some people budget will make a difference. Many lawyers offer free initial consultations, some give a 20-minute free phone consultation and there are community legal centres available. The thing to remember here is “you get what you pay for”. 

My view is that the initial attendance is of critical importance in providing information that can affect the entire process or outcome of a client’s case. 

Because everyone has different situations and circumstances, I don’t believe a lawyer can be adequately assess a client’s needs, provide advice as to the law, process, evidence and costs within 20 minutes or just “over the phone”. But because lawyers sell their time, it must be costs effective for the lawyer to take the time and manage the client’s budget. 

We overcome this by placing no strict limit on the time a client attends upon us for the advice, while charging a “fixed fee”. Thus, the client doesn’t have to worry about looking at their watch and is free to explore all the questions they may have in an unrushed environment. In my experience at this first meeting, with a well-managed meeting, typically within 1 to 2 hours (at an average of 1 hour 30 minutes) most client’s report leaving our office “feeling better”, with an understanding of what they need to do moving forward. We also offer an after-interview phone call if there is something unclear or if a further question arises.

The information that we impart at this meeting covers issues such as:

  1. A summary of the law and how it applies to the client’s situation.
  2. An explanation of the processes available to resolve the matter by consent and processes if an agreement is not readily forthcoming.
  3. Provide a case strategy.
  4. Provide a strategy to get to an agreement with the other party, how to communicate and the steps most likely to maintain or promote amicable discussions.
  5. What to do and not to do in terms of proposed actions.
  6. Referral if necessary, to other information or service that may assist.
  7. As accurately as possible longer-term costs estimates, estimated costs for different outcomes/strategies, advice as to how to reduce legal costs, examining strategy and outcomes in the context of budget.

In essence, most legal services are about providing “damage control” for a client. “Cost exposure” is a necessary element of damage control, and also important in terms of the information a client needs to make commercial decisions.  

Equally important is expertise. You need to have confidence in the advice you are receiving because, frankly, you’re dealing with your life savings and your children in many family law matters. 

Family lawyers like anyone have different levels of experience and ability. Once thing that can help differentiate between lawyers is whether they are a “family law accredited specialist”. An accredited specialist has been through very rigorous further study, academic examinations, practical examinations and has had a minimum of 5 years’ experience.  Looking at a lawyer’s bio on their firm’s website can be helpful as well.

Some general tips to assist post separation 

From a practical perspective, after receiving initial advice and making contact with a lawyer, negotiations can commence. A negotiated outcome is by far the best outcome that can be achieved in family law. The quicker this can occur is better (and cheaper) still.

My view is that without some information and guidance from a lawyer you shouldn’t really start negotiations. The reason I say this is because unless you understand family law, you’re likely to get into an “information dispute” with the other party. Different people have different ideas about how the system works and if a clash arises, conflict which is counterproductive to negotiation, can result. 

Another reason is a party can become “positioned”. This means something discussed is agreed to or misunderstood, and it can be difficult to move away from later on (say after getting advice). If both parties get advice there should be a fair degree of overlap in terms of expected outcomes, making an agreement more likely.

Maintaining good communication is another tip. I’m not sure if this is ever easy post separation. If you are able to keep things as amicable as possible it will make resolution much more likely. I normally recommend for to people to keep communication “businesslike”, if possible, to negotiate in writing and to avoid “mirroring” if someone says something you don’t like. Mirroring is where someone says something irritating and the other person does the same in return, usually leading to an escalation in conflict.

It is most important though to remember that everyone’s case is different, and strategy should be tailored to your situation. There is no one size fits all in family law. 

Family law advice

If you have any queries in relation to family violence or parenting orders, my firm Hooper Mill Family Lawyers can assist you with practical advice. 

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

It’s not unusual in many areas of law to apply time limits to the performance of a task or making a claim. Typically, time limits are something that lawyers are very mindful of when first meeting with, and advising a client, because if time limits are missed, the family lawyer could potentially be liable if a client suffers loss.

Sometimes “timing” is important to a client as well. I have often been asked “should I wait to do my divorce before I finalise property settlement?” or with respect to relocating children “should I wait before going to Court”? These types of situations fall into the strategy of a case and there are many more examples where timing is important for a satisfactory outcome.

The following are some (not all) of the important references to time that occur when you’re involved in a Family Law matter.

Divorce

Since 1975 there has only been one ground for Divorce in Australia. That is “irretrievable breakdown of the marriage”. This is evidenced by a 12-month continuous period of separation. However, to promote the opportunity for reconciliation, married couples can get back together for up to 3 months without “resetting the clock”.

For example, if I’m separated for 3 months and get back together for up to another 3 months and then separate again, the first 3 months is counted as part of the 12-month continuous period of separation. If I get back with my husband or wife for 4 months though, the 12 months would need to start again. 

Also, if I’m only married for 2 years there is an additional requirement for a “counselling certificate” and counselling before the Divorce can be filed. Again, this is designed to “give love a second chance” and see whether the marriage can be saved. 

Limitation periods for property claims

There are restrictions on when a claim for property settlement can be brought which are slightly different for married or de facto relationship couples. Lawyers call these time limits “Limitation Periods”.

The time limits are:

  • For married couples within 1 year of the date of a Divorce.
  • For de facto couples within 2 years of separation. 

For married couples the time limit will not commence until a Divorce occurs. Many people think of the Divorce as covering all of the property and children’s issues however this is not the case. 

A Divorce is only the termination of the marriage. People can resolve parenting issues and property settlement without ever being Divorced. Conversely, people can be Divorced and not resolve property issues.

There are some cases where people have waited long periods of time, haven’t been Divorced and seek property settlement (some more than 20 years after separation). This is not advisable as it introduces much complexity into the issues to be resolved. Without delving too far into issues of “contributions”, contributions have a different character post separation and long period of separate economic activity can be difficult to assess. In some cases, Courts have determined that after such a long period it may be no longer “just and equitable” to adjust property interests, which is a requirement of the power of the Court to Order a property settlement.

Most married people make the property settlement a priority before the Divorce and in my view this is sensible. There is no danger of the Limitation Period expiring and it makes the process simpler. In my experience complexity in legal matters typically means higher costs.

For de facto couples since 2009 (in most states) they enjoy the same processes as married couples, and the substantiative law is largely the same. However, not so regarding the Limitation Period. While married couple have 1 year it operates from the date they obtain a Divorce. De facto couples have 2 years but this time starts running from the date they separate.

In practical terms a looming Limitation Period means to protect it from expiring a Court Application must be made. Most people don’t want to go to Court and would prefer to negotiate a settlement so making sure there is sufficient time is important. Going to Court doesn’t mean you can’t negotiate a resolution, but it adds to stress and costs.

What if the Limitation Period does expire?

If the Limitation Period does expire it doesn’t necessarily mean you can’t proceed with a claim. 

However before making the claim the other party would need to consent to it proceeding or permission of the Court (known as leave of the Court), would need to be obtained.

Leave of the Court will be granted if the Applicant can successfully establish “hardship” to a party or a child.

There are numerous cases with respect to hardship, some of the main points are as follows:

  • Hardship is akin to hardness, severity, privation, that which is hard to bear or a substantial detriment (Whitford [1979] FamCA 3).
  • Weight ought to be given to the intention of the limitation periods (Whitford [1979] FamCA 3).
  • Matters such as the length of the delay, reasons for the delay, prejudice to the respondent occasioned by the delay, the strength of the applicant’s case and the degree of hardship… are to be give weight. (Sharp [2011] FamCAF 150 citing Whitford).
  • The application ought to have a prima facie case worth pursuing not the mere loss of a cause of action. (Sharp [2011] FamCAF 150).
  • “Prejudice” to the respondent includes where a party is faced with a cause of action, he or she had no reason to expect or had been led to believe would not be brought.” (Frost & Nicholson [1981] FamCA 45).

If the other party requires the Applicant to obtain leave apart from the risk of the Court denying the Application, costs will be significantly increased.

The moral of the story is (in my opinion) there is no substitute for early advice from a specialist family lawyer for advice, including with respect to issues such as timing.

Other Family Law time considerations

Your family lawyer will be able to advise you with respect to timing issues from time under the Federal Circuit Court Rules 2001 or Family Law Rules 2004 to take certain steps, or the need to respond to a time limit imposed by a family law solicitor acting for your ex-partner. 

Being experienced lawyers, we know the tactical considerations that ought to be borne in mind. With parenting matters this can be critical to your case because a change in a child’s circumstances can be material to the outcome.

The bottom-line is don’t procrastinate, be proactive and find out where you stand early following separation.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. 

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

It is not uncommon for people meeting with their family lawyer for the first time to raise issues of fault, wrong doing or poor conduct by the other party.

Many people automatically assume these are the types of issues that will be most relevant in the event that going to Court becomes necessary.

In my experience, if a party is suffering from the loss of the relationship, betrayal associated with an extra-marital affair or fear of change, retribution and validation of those feelings can also drive a client’s perception as to what is relevant or important. Again, in my experience, this often manifests as an aggressive approach to litigation, intractable positions, and allegations being raised in correspondence and court documents and in some cases harassing behaviour or family violence.

 

In general terms, what does the Family Law say about fault or conduct?

Prior to the Family Law reforms in 1975, there were 14 grounds for Divorce, the majority of which were fault based. This included conduct such as habitual drunkenness, physical cruelty, desertion, adultery, imprisonment etc.

The Matrimonial Causes Act 1959 was repealed in 1975 to remove the 14 grounds and introduce one ground, that is, “irretrievable breakdown of the marital relationship”.

Whilst proving fault under the 14 grounds was difficult and often unsavoury (imagine private investigators spying on people to prove an affair, or taking photographs etc), proving the irretrievable breakdown ground only requires a 12-month period of separation.

The general flavour of the reform across the wider areas of parenting orders, property settlement and spousal maintenance, was also to recognise the undesirability of “fault” paying a part and to move away from evidence relating to bad conduct being raised in proceedings.

 

Does fault pay any part now then?

The answer is yes.

In some circumstances fault still does play a role. Not with respect to divorce but in relation to certain aspects of parenting, property and spousal maintenance.

 

Parenting orders

As I have discussed elsewhere on this site, Family Court and Federal Circuit Court judges have a broad discretion to make Parenting Orders subject to the best interests of children being the paramount consideration, and considering the Objects and Principles underpinning the Family Law Act 1975 relating to children’s cases.

Often fault or conduct will be relevant in determining whether children are at an unacceptable risk of harm, whether a parent has capacity to properly care for children, maturity and lifestyle of the parents, family violence and other conduct depending on the circumstances.

Thus, conduct such as family violence, alcohol/substance dependency issues and poor lifestyle choices (for example surrounding neglect) can clearly be understood as being relevant in a child custody case.

In my experience however, it sometimes occurs that people will want to place greater restrictions on the other parent’s time as “punishment” for bad behaviour, such as extramarital affairs or re-partnering, and this is not something relevant to who children live with or spend time with.

Indeed, this type of anger can often backfire, with the party’s who’s conduct is creating high conflict being examined as a potential source of risk of emotional harm to children.

This is where a good family lawyer can help, by determining the relevant from the irrelevant and assessing the evidence which is the currency of any court.

 

Property settlement

In my view there is less scope for fault or conduct to be relevant in a property matter.

Again, anger over affairs, re-partnering, loss of a life partner etc is not directly relevant but it can certainly drive a dispute. Family lawyers can assist in filtering some emotion from communications and how your evidence is presented.

Mediators assist by diagnosing the underlying causes of a dispute and using interventions such as reframing to provide a more neutral or positive interpretation of events.

Some examples of the type of conduct that can be relevant is as follows:

  • Losses from reckless, wanton or negligent conduct. This would include deliberately destroying an asset, things such as gambling losses or behaviour such as removing or hiding property without sufficient explanation. The conduct would be relevant, but the judge retains a broad discretion as to how the conduct will affect distribution of assets.
  • Family violence in some limited circumstances can be regarded. Lawyers often call these cases Kennon cases”. In these situations, one party’s violence has made the other party’s contributions to the property pool, or welfare of the family, more onerous. From a practical perspective evidence may be difficult to obtain to establish the “special burden” and the weight this evidence will be afforded is at the judge’s discretion.
  • Generally, a Court will consider you take your partner as they are i.e. a spend thrift or a saver, however in some circumstances it may be possible to argue “negative contribution” due to excessive habits or poor judgement with money. While cases often interpret this type of behaviour differently it will usually come down to a question of degree in the context of the amount of property available for distribution.

 

How Hooper Mill Family Lawyers Gold Coast and Brisbane can help?

The Family Law jurisdiction is complex and often judges have broad discretion to weigh and interpret evidence. As experienced, specialist family law solicitors we can identify for you what is relevant, tell you how we think a Court will interpret the evidence you present us with, provide a filter for emotion or anger and move towards a faster resolution.

As identified above, sometimes placing evidence of irrelevant conduct or the making allegations of misconduct without sufficient evidence can back fire for your case and put you in a worse position. Thus, your choice of solicitor is an important one.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost-effective manner. Please contact our Coolangatta office on 5599 3026 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://hooperandmillfamilylawyers.com.au/

 

1 – Section 60CC(3)(m) refers to any other fact or circumstance that the court thinks is relevant. Thus, there is a potential for almost any other form of conduct to be raised if it’s is relevant.

2 – In the marriage of Kennon [1997]F.L.C.92-757

“What’s mine is yours and what’s yours is mine” …but what about the joint bank accounts?

Most people who are married or in committed relationships intertwine their finances. Typically, this takes the form of joint ownership of the family home, motor vehicles and of course the joint bank account (or credit card).

While most people realise there is a process to divide assets and work out who receives what, in our experience there is often confusion regarding the law surrounding accessing jointly held cash.

Common questions people ask family lawyers are:

  • Can I take my half from the joint bank account?
  • Can I take all of it?
  • He/she has transferred it to their account, but I know the banking passwords – can I take it back?
  • How can I stop him/her accessing the joint account?

What’s ours is mine…

When people co-own a bank account both parties are equally entitled to access all of the money i.e. they don’t own half each. They each own the full amount.

This means that whoever gets to the bank first (figuratively speaking – probably the computer first) can legally clean out the joint account.

In this situation it would be necessary for the party who didn’t take the money to take further steps to protect their interests. Neither the bank nor the Police would bear any responsibility to rectify the situation.

Fortunately, however the Family Law Act 1975 does contain remedies and provide Judges with power to address this situation on an interim, or final basis.

For example, if someone was to transfer money to their own account from the joint account, the Court would be able to make Orders, such as, for some or all of the money to be paid to the other person, restrain a person from further dealing with the money, or Order that it be paid into a trust account pending the final determination of all of the issues.

What’s yours is mine…

It is also not uncommon for married couples or people in de facto relationships or other committed relationships to share passwords, pin numbers or banking details (their banks would be angry if they found out).

We have also encountered situations where some people regard being married, or in a de facto relationship (particularly for a long time) as granting equal rights to property. This is not the case.

Being married or in a relationship does not convey property rights.

People may have a common use of property, but ultimately if property is not jointly owned it generally belongs to one of them.

During the relationship it may have been ok to use credit cards, bank accounts or make bank transfers from your partners account but only because this was impliedly or expressly authorised.

If there is no authorisation from the owner, then accessing funds in the above manner may well be stealing, and land you in hot water with the police.

As a general rule, if you’re separated do not use the ex-partners cards or accounts unless there is an express authorisation (in writing).

What’s mine is yours…

The Family Law Act 1975 empowers the Court to adjust interests in property provided the Court does “justice and equity” i.e. the court can take what’s yours and make it his or hers.

The Court also has a number of powers (alluded to above) that can assist in making sure property that may be distributed between the parties to the relationship, is protected until such time as all of the matters are considered.

There is also steps that people can take themselves to avoid Court, unnecessary costs and inflaming the situations. Some examples are:

  • Contact the bank and see if they have an ability to “freeze” an account at the behest of one party;
  • Have a discussion with your ex-partner. Ask them whether they will agree to splitting the funds a certain way, or whether they will agree to having the money deposited to a neutral third party such as a solicitor’s trust account, to be held for both parties.

If in doubt and before taking action that you feel may not be right or may likely inflame your situation, please contact a family law solicitor at Hooper Mill Family Lawyers at Victoria Point or Coolangatta on 3207 7663 for advice.

Alternatively for more information we have many helpful resources on our website.

Accredited Specialist Family Lawyers Gold Coast and Coolangatta

Hooper Mill Family Lawyers is making a sea change…of sorts…we’re staying in the Brisbane Bayside (we love it here) however we now also have a branch office on Griffith Street, Coolangatta.

We will be offering specialised Family Law advice to the Gold Coast and Northern NSW regions including:

  • Family law advice;
  • Consent orders;
  • Parenting Plans and child custody matters;
  • Mediation;
  • Property settlement;
  • Spousal maintenance;
  • Domestic Violence protection;
  • All other aspects of de facto and family law legal and Court representation.

Our office in Coolangatta is situated within walking distance to the Magistrates Court at Coolangatta, and we will be providing representation in the Federal Circuit Courts at Lismore and Southport, as well as representation in the Brisbane Family and Federal Circuit Courts.

For us this is an exciting opportunity to grow our firm, forge new relationships, and provide our expert family law services on the Gold Coast and Northern NSW.

Our mediation services via “Decide Mediation” will also be available from the Gold Coast office, and we are available to travel for mediation from Brisbane to Coolangatta and Northern NSW.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost effective manner. Please contact our Coolangatta office on 1800 891 878 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://hooperandmillfamilylawyers.com.au/

With divorce comes property settlement, the two go hand-in-hand. This procedure is stereotyped as a long, bitter feud between the parties over money, furniture, and other assets. But it doesn’t need to be this way.

 

What’s a property settlement?

A settlement occurs after a couple separates and begins divorce proceedings. Assets like properties, bank accounts, cars, and the like come under scrutiny. A settlement is possible without court involvement if the former partners can come to an agreement. To make the agreement legally binding, the family lawyer can put in an application for a court order.

 

How is property divided?

Property settlement and issues surrounding it fall under the Family Law Act. If there’s a dispute and it proceeds to court the following steps are taken:

 

  1. Identifying and valuing all property from the marriage/partnership
  2. Identifying and valuing the contributions each person has made to the property through income, homemaking, inheritances, etc.
  3. Factors about each party are considered. This includes their level of personal responsibility, their ability to look after others (particularly children), their ability to earn, their age and state of health
  4. A ruling is made

 

The idea that property is divided equally between former partners is a myth, one that your family lawyer will quickly dispel. As stated above, how much of the property settlement a party is entitled to depends on their overall contribution during the marriage and other factors post-divorce.

 

Is it possible to settle without involving the courts?

Your family lawyer will encourage it. If mediation is a possibility it’s the better option to take. Property settlement is easier when both sides, though separated, still have a good relationship. Issues like child custody, and deciding who gets the home and inheritances settle faster through mediation. Going through the courts takes time and money.

 

What if we weren’t married?

De facto partnerships, including same-sex partnerships, still fall under the Family Law Act after amendments were made in 2009. Former couples can apply for consent orders and spousal maintenance like any married couple. You must apply for consent orders and adjustments a year after the divorce was final (two years for de facto relationships).

 

My partner is trying to sell the house/other assets. What do I do?

Get legal advice and apply for an injunction immediately. This stops any sale in its tracks. If it’s too late to stop the sale, your lawyer can at least apply for the money to be ‘frozen’ until the settlement is final.

 

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Handling divorce at Christmas with the kids

6 of the best things you can do when divorce gets emotional

Sick of crying, feeling angry and upset, or just plain tired during your divorce proceedings? That’s not unusual. Even if the split is an amicable one, you’re parting ways with somebody you once loved and shared good times with. Taking care of ourselves often falls to the side at times like these and that’s actually detrimental to our health.

During a divorce we’re going through a loss, a trauma. And while there’s plenty of support from family and friends it’s good to ‘shake things up a bit’, rather than going to their homes and meet them for coffee every other day because you can’t think of much else to do. Here’s some things you can do to ‘drive yourself to distraction’ in the best way possible.

 

  • Dust off your hobbies

You stick to your hobbies because you enjoy them. They go on the backburner more often than not because life gets busy. But if there’s ever a time to get back into painting/cooking/pottery, it’s during a divorce. Here’s some places that can help facilitate your passion:

pexels-photo-542555

 

  • Download some podcasts

Podcasts are the new way to catch up with what’s going on in the world. There’s several for every genre; drama, news, socio-cultural and educational. These are some of the top ranked from various sites around the web.

Not everyone listens to a podcast idly; they’re  great for making time pass faster at work or on the walking trail. And that brings us to the next point.

 

juja-han-210775

 

  • Get back to the gym

Get those endorphin levels up and build those muscles! It’s true what they say, a strong body equals a strong mind. Hundreds of studies attribute a positive mindset to regular exercise. If you go to the gym already maybe try a different class instead of sticking to your regular routine. You’ll actually ‘shock’ your body when you do something new and who knows? You might actually like it.

 

  • Rewatch something you love

Everyone is guilty of binging on their favourite television show or some Netflix original series. But if it made you feel good, why not do it again? Make yourself a cup of tea and put on that Simpsons marathon.

 

  • Learn something new

MOOCs (massive open online courses) are popping up everywhere. They’re a great way to build on your old skills and learn some new ones. Most of them are free, though you can pay extra if you want a certificate. Courses are from genuine universities like RMIT, Harvard, Griffith, Australian National University, and the University of Queensland. Some of the best providers are below.

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Christmas and holidays are common sources of conflict when making custody arrangements. Which parent gets to spend the actual day with their child? Does the child have to go through two Christmases? Your first Christmas post-divorce will be difficult but we have some advice to help you get through.

Dr Robert Emery, PhD, advises parents that sometimes it’s better not to be friends post-divorce. Sometimes it works and couples reconcile (though this is rare). But when the relationship is beyond salvaging and there’s lingering bitterness, he recommends the following: treat your ex as a business partner. You’re bound together by the child you have, and there’s still a job to do. Dr Emery further explains how to handle the holidays in his blog on Psychology Today:

  • Remember that Christmas isn’t about you or one-upping your ex through the gifts you give. Explain the values that come with Christmas to your kids (thankfulness, forgiveness etc)
  • Make new traditions with your kids. If they don’t spend the actual day with you, create your own brand of Christmas that year.
  • Don’t avoid your ex-partner. Communicate and schedule visiting times, and even presents. This way you both know your child’s movements and you don’t double up on gifts.

Divorce and the whole process will hit the kids hard, writes, Christina McGhee. Ultimately, it’s up to the parents to explain the situation as best they can, and what’s going to happen next. Christina urges parents to be transparent about how the upcoming Christmas will be different to those in the past. She also recommends these steps to keep sanity, perspective and emotions in order:

  • Let the children’s needs be the backbone of planning your Christmas
  • Explain that different doesn’t have to be a bad thing. Rather, it’s a chance to start new traditions with each parent.
  • Make sure you care for yourself, whether it’s for an hour or a day. Your emotions are going through the wringer and the children are going to pick up on it if you don’t stay calm.

Separation and divorce proceedings can cause strong emotional reactions such as anger, hurt, fear and anxiety about the future. When emotions are running high it can be difficult to make the best choices.

The following are some tips to assist you with the emotional aspects of marriage breakdown.

  • Consider reconciliation

Divorcing isn’t always the final solution. Ask yourself whether the relationship can be salvaged. There are relationship counselling services you can access and participate in as a couple.

The Family Law Act 1975 requires that your family law solicitor provides you with prescribed material regarding the availability of reconciliation services. Prevention is better than cure, so ultimately reconciliation may be the best outcome for your family, emotionally and financially.

  • What if the marriage or relationship cannot be saved?

Often when people are at the point of obtaining advice from a family lawyer, the reality is the relationship can’t be saved.

If you find yourself separating, there are steps you can take to make the process a bit easier on yourself.

  • Don’t forget the self-care

Taking care of yourself makes you feel better in a difficult situation.   

It’s not always easy to do but getting enough sleep, eating healthy food, exercise and getting help, or information, will improve your situation and outlook. If you are struggling with anxiety or depression a useful place to start is with your general practitioner who can refer you to psychologists or counsellors.

Your lawyer can help to demystify the legal process, and provide you with a road map for resolution leading to the next phase of your life.

Something simple, like your favourite meal, is a great form of self-care

Something simple, like your favourite meal, is a great form of self-care

  • Flexibility

If you’re negotiating property settlement or children’s time, it is important to consider keeping an open mind and not become “positioned”.

Becoming positioned is when you draw lines in the sand, create “bottom lines” and say things like “my way or the highway”.

Often in negotiations or mediation, it is more useful to consider the interests of everyone involved (including children), the costs involved in litigation (including the non-financial, emotional cost of a protracted legal fight) and the time you will spend dealing with lawyers and Courts that you could be spending getting on with your life.

  • Try not to “mirror” hostile behaviour

Often separation isn’t amicable. You may find yourself confronted with aggressive, angry and unreasonable behaviour.

If you’re also angry it can be a natural reaction to respond in kind. This situation is rarely helpful and tends to escalate conflict.  Conflict in family law matters tends to make resolutions more difficult to achieve and can be very emotionally harmful to children caught up in the middle of such a dispute between their parents.

You can’t control what your ex-partner is doing but you can control yourself, and choose not to mirror destructive behaviours. Often when one party refuses to “mirror” aggression, a de-escalation will occur. Family violence of course should not be tolerated in any context. If you or a family member is confronted by family violence or threats of family violence you should contact police or discuss options for your safety with your lawyer.

  • Get proper advice

You may find after separation you start receiving lots of advice from family and friends about your “legal rights”. While they generally mean well, be wary of the back yard or BBQ advice.

Family law is complex and while someone may know someone with a situation similar to yours, family law outcomes will depend on many different factors unique to individual circumstances. Early advice from a family law solicitor will assist you understand what you need to do, and will likely make you feel better.

In my experience, one of the most common types of remarks people make leaving my office after an initial attendance for advice is “thank you, I feel much better now”.

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