The “Do’s and Don’t’s” of the Initial Family Law Consultation

Deciding to pick up the phone and make that dreaded first call when you feel the time is right to contact an attorney is a petrifying moment.  It’s one of those times in your life where you just have to take the plunge, dial the phone and make the call.

Once you’ve decided on the attorney you want to meet with, a sense of relief may come over you… until the day of the appointment. Panic, fear, confusion, hurt and uncertainty are all natural expectations that an experienced attorney will recognize and deal with when you arrive.  But don’t let your apprehension overcome you. You made the call. You scheduled the appointment.  It’s time. You know meeting with the attorney is the right thing to do.

More often than not, the attorney is going to meet you when you are at your worst, especially in a new divorce consultation. That’s expected.  You wouldn’t be at the law office if things were rosy and life was grand.  An experienced family law attorney knows that you are vulnerable, emotionally drained, and sadly, sometimes physically abused.  The attorney will help guide you through the initial process, help you cope with your emotional well being, and offer suggestions to help you make yourself “a better you” as the process proceeds, and most important, be the partner your attorney will need to effectively advocate for you throughout the divorce or post-decree proceedings.

In order to make the most out of the initial meeting with your attorney, there are a few simple rules that will help you, the client, and your attorney make the most out of the initial consultation.  Remember, just as you are interviewing the attorney, the attorney is interviewing you as well.  You are both evaluating each other to determine if the two of you are a “proper fit” for each other.  Just as you are gauging the attorney’s knowledge, demeanor, compassion and strategy, the attorney is also evaluating you to determine what type of witness you may be, your candor and truthfulness, and your ability to be an effective partner throughout the proceedings.  If you’re not comfortable with what you’re seeing or hearing, don’t hire this attorney. But by the same token, if the attorney is not comfortable with you, the attorney is under no obligation to accept your case or you as a client.  It’s the proverbial “two way street;” you both have to want to work together, feel comfortable with each other and be on the same page in order to be successful in your case and to have a successful attorney/client relationship.

When preparing for the initial consultation, there are a few “Do’s and Don’t’s” that will make the initial consultation less stressful for you, and more beneficial to both you and the attorney. Of course, some law offices may have different procedures and practices, so it’s a good idea to ask when you make the initial appointment to see if there are any procedures you should know before you have your first meeting, especially if there will be a charge for the initial consultation. Some of the suggested “Do’s and Don’t’s” that our law office adheres to are:

For the Initial Consultation, DON’T:

 Don’t be offended if there is a charge for the initial consultation.  The lawyer’s time is how he or she makes their living and you are receiving a professional service. The time the lawyer spends with you could have been spent on another case for which he or she could be getting paid, so it is not out of the ordinary to expect to pay for the initial consultation.  Our firm, like many others, has a discounted rate for the first hour consultation. The information you receive will be well worth the fee, not to mention that it may be a significant stress reliever as you move forward. Don’t forget:  “You get what you pay for…”

• Don’t bring a friend or family member with you for moral support.  That person cannot participate in the initial conference due to confidentiality requirements and ethical concerns of the attorney.  A friend or family member has nothing to contribute to the initial conference.  If they have something relevant to provide to your case, the attorney will, undoubtedly, interview them later to make that determination.  The attorney wants to talk to you, only, at the initial consultation because you have the pertinent information, not your friend or family member.

• Perhaps even more important than not bringing friends or family members with you to the initial appointment is don’t bring children with you.  Because of the sensitive discussions that may occur during your initial consultation, children should not be present.  Also, there is no place for children to stay while you are meeting with the attorney other than the waiting room/reception area.  Law office staff have jobs to do and providing child care for you is not in their job description, nor should it be their responsibility to entertain your child/children during this very important meeting.  This meeting is a job interview, for both you and the attorney.  Would you take your children to a job interview?  You shouldn’t bring your children to the initial consultation either.

• Don’t be late, or just not show up.  Just as you will expect to receive courtesy from the attorney and the law office staff, the same courtesy should be extended to them from you.  If you see that you are going to be late, call the law office and let them know.  If you need to cancel the appointment for whatever reason, have the courtesy to call the office and cancel.  Perhaps someone else can use that appointment time if you can’t make it, or just aren’t ready to take that step.

• Don’t withhold any information or facts, even if it may be embarrassing.  An experienced attorney will be able to advise you as to what is relevant or not, and leaving out even the simplest fact or occurrence may have a devastating impact on your case.

• Conversely, don’t embellish or exaggerate facts or occurrences to help bolster your case.  By not being completely honest with your attorney, it may affect how you are represented, the strategies taken, or even worse, bring your credibility into question. Truthfulness is always the most important aspect of your case, even if it hurts.

• Although everyone wants to make a good first impression, there is no need to “dress up” for the initial consultation. Wear what you feel comfortable in because you may be having an uncomfortable, emotional and stressful discussion for the next one to two hours. Also, don’t over indulge in fragrances; perfumes or colognes.  Many people have allergies to certain fragrances, and although you may like to smell good, overpowering perfumes and colognes can distract from a meaningful and productive initial conference.  Don’t forget that you will be meeting in a closed room; either the attorney’s office or a conference room that can quickly become overwhelmed with an overpowering fragrance.

• Last, but certainly not least, don’t rely on what you read on the internet or what your friends tell you. The internet can be a very valuable tool, but can also be full of misinformation and vague, often confusing, interpretations of the law. Just as you wouldn’t rely on a medical website to diagnose a serious medical problem, don’t rely on the internet to tell you what the law is, or how it would be applied in your particular case.  Additionally, friends can be well meaning, however, their case is not yours.  Remember that just as every individual is different, every case is different.  Your particular circumstances, your spouse, and even the personality of opposing counsel will sometimes dictate how your case should be handled strategically.  Do not be overly concerned about what “my friend so and so got” or “my friend said.” Your friend, and the internet, cannot take the place of the attorney you are about to meet with, as the attorney will tailor the advice you receive based on your individual facts and circumstances.

Now that you know what not to do before the initial consultation occurs and after it begins, here are a few helpful items to assist you in being a well prepared client as the initial consultation approaches:

For the Initial Consultation, DO:

• Do come prepared with specific detailed information.  Social security numbers, birth dates, date of marriage, health insurance costs for both you (individually) and your children, child care costs, expenses for special medical needs for either you and/or your children, college costs for either you and/or your children, two years of tax returns, four pay stubs showing year to date earnings, a list of personal property owned by you and your spouse (or with someone else, if applicable), a complete copy of your pre-nuptial agreement (if applicable), appraisals for real estate or personal property, police reports and/or protective orders (if applicable), vehicle information, and, most important, any court pleadings or prior court orders that may have been entered in your case.

• Do tell the attorney if you are active with text messaging and/or on social media.  There is a good chance that the attorney will advise you to seriously curtail your activity with text messaging and on social media, if not cease it completely.  If there is anything that you have texted or posted about your spouse, friends, relatives, in-laws, etc., it may be wise to print your texts and posts and provide a copy to the attorney and refrain from texting and posting anything else until your case is concluded.  Social media posts, and especially text messages, are now considered admissible evidence in some courts, so let your attorney know, up front, if there are texts and/or posts that may be detrimental to your case.

• If you are comfortable with the attorney, and the attorney accepts your case, and you as a client, do read the Employment Agreement carefully and in its entirety. What is the retainer? What are the court costs? What is the hourly rate? What happens when my retainer is depleted? Will my spouse be responsible to reimburse me for my fees?  How much is charged for a phone call? How much is charged for a letter or email? Is there a different hourly rate for appearing in court opposed to office work? Am I charged for photocopies? Am I charged for postage? Is there a different hourly rate for the attorney, paralegal, or other staff members?  When am I billed? When is my bill due?  These are all legitimate questions that should be answered at the inception of the attorney/client relationship. Knowing the answers to these questions will help avoid an uncomfortable situation for both you and your attorney as your case and relationship progresses.

• The most important thing you can do in preparation for the initial consultation is bring a list of questions.  We’ve all heard the old adage “there’s no such thing as a stupid question.”  This is definitely true at the initial consultation.  Your attorney knows that you’re not an attorney with his or her legal knowledge and experience and that your head is probably spinning with nervousness, worry and concern; both legal and personal.  Ask the question… you deserve an answer, you need the answer. Being able to communicate well with your attorney always begins at the initial consultation.  Attorneys appreciate clients would want to be well informed.  Be that client!

Making the call to schedule your initial consultation is never an easy task.  You may have thought about doing it for a long time, or, unfortunately, a sudden need to hire counsel has arisen.  Regardless of how long it took you to make the call, you’ve made it, the appointment is scheduled and the hard first step is over.  To make the next step less stressful, and more meaningful and productive when you meet with the attorney, follow these simple guidelines and you’ll be well on your way to a successful initial consultation and an even more successful attorney/client relationship.

Good luck!

One rule for him and another for her as Oklahoma Supreme Court dismisses Sue Ann Arnall’s appeal

In November 2014, Harold Hamm, the CEO of Continental Resources, was ordered to pay his ex-wife Sue Ann $995.5 million in what was described as one of the biggest divorce settlements in history. With the award representing only a fraction of Mr Hamm’s estimated $18 billion empire, Sue Ann appealed, claiming that she should be entitled to a much heftier settlement due to her significant contributions during their 26-year marriage. Conversely, Harold made his own appeal, arguing that the almost $1 billion figure was excessive.

On 28/04/15, the Oklahoma Supreme Court dismissed Sue Ann’s appeal in a 7-2 decision, stating that she had forfeited her right to appeal in January, when she took possession of the marital property that had been awarded to her and cashed a cheque for $975 million. The Supreme Court did not dismiss Harold’s appeal.

The two dissenting judges branded the above decision ‘old fashioned’ and ‘draconian’. They suggested that if the only way to maintain the right to appeal was to reject the tendered cheque, this would allow the husband absolute and unfettered control over the marital property during the pendency of what could be a lengthy appeal. Not only would this provide Harold with the opportunity to deplete the marital property (admittedly a rather onerous task considering the extent of his wealth), but it would also leave Sue Ann, and other women in such a position, potentially unable to afford the cost of living in the interim period between the court ruling and the appeal. Surely it is inequitable for those who are unhappy with a court decision to have to choose between affording to live and appealing a ruling?

Not only does the Supreme Court’s ruling seem outdated, but more importantly it appears to be bias towards Harold. For if the court thinks that accepting the tendered cheque removes the right to appeal for the wife, then surely, using the same logic, writing the cheque should also remove the right for the husband. Using the basic concept of offer and acceptance, it could be argued that if there is a ‘no returns’ policy for Sue Ann, then there equally shouldn’t be room for Harold to recall the cheque that he presented to his ex-wife. It is potentially inequitable and inconsistent of the court to draw a distinction between the party’s actions.

Ironically, Oklahoma is an equitable distribution state, which means that divorce settlements must be just and reasonable. One of the big considerations for judges dealing with such disputes is what each spouse needs in order to move forward following their separation. Understandably, the judges who reviewed Sue Ann’s appeal would have found it very difficult to sympathise with an argument, claiming a life with only $1 billion is not worth living; however, they should have also considered factors such as her contributions during the marriage, as well as providing a more impressive basis for dismissing her appeal.

Craig Box, one of Mr Hamm’s attorneys, has said that it is too early to comment on whether or not Harold will appeal. However, the likelihood is that he will not and that, instead, he will be delighted with the dismissal of his ex-wife’s appeal. There is even room to suggest that Harold was content with the initial ruling in November, and appealed against it himself simply to highlight his disdain for Sue Ann’s appeal. After all, although $995.5 million is more money than most people could ever dream of earning, it is only a minute fraction of his overall wealth and therefore he could well have been relieved with the county court’s decision.

One thing that has been made very clear by the Supreme Court’s ruling is that the Oklahoma state does not believe equity necessarily requires equality. Whereas the UK has gained a reputation for being the ‘divorce capital of the world’ due to its generous divorce settlements that often entail a 50/50 split of assets, the Oklahoma courts clearly do not mirror this approach.

Don’t look back in anger? Try telling that to Dale Vince

During the couple’s relationship, the pair lived a nomadic lifestyle, surviving on very little money. Following their separation, life continued in a similar manner for Ms Wyatt, who today lives in an ex-council house in Wales with her children. However, things changed dramatically for Mr Vince when he founded Ecotricity in 1995, which is now one of the UK’s biggest green energy companies.Mr Vince’s new lifestyle mirrors his business success and he currently lives in a £3 million 18th-century castle with his new wife and their son.

At first glance, it seems obvious that any maintenance claim brought by Ms Wyatt so long after their divorce should fall flat. After all, the maths is plain and simple: Mr Vince’s success came three years after the couple divorced and therefore this surely means that Ms Wyatt’s ship has sailed and she has no right to any of her ex-husband’s earnings? This logic was certainly used by Lord Justice Thorpe in the Court of Appeal, who stated that Mr Vince was not to be Ms Wyatt’s ‘insurer against life’s eventualities’. However, shockingly, when the matter reached the Supreme Court, Lord Wilson ruled that Ms Wyatt should be entitled to bring a claim against her ex-husband and stated that the matter should be heard by a judge in the Family Division of the High Court.

When the case does come before the High Court, Ms Wyatt will likely base her claim on her significant childcare contributions over the years. Mr Vince will rely on the ridiculously long delay in the claim being brought, as well as the fact that although the couple were officially married for 11 years, they actually only enjoyed marital cohabitation for two years.

Although Ms Wyatt’s claim may not be successful, the fact that she has received permission to bring it before a Judge is still extremely unsettling for divorcees, who should not have to live in fear that their divorces, which they presumed to be ‘done and dusted’, may rear their ugly heads in the form of a claim in the future.

If nothing more, the Supreme Court’s ruling comes as a huge warning to anyone whose marriage ends in divorce, and that warning is quite straightforward: it is imperative to get a final order so that all monetary claims are dealt with together with the divorce. It is certainly understandable why many fall into the trap of thinking that a clean break is unnecessary; after all, when a couple have lived on an extremely low budget throughout their marriage, the cost of a court order is likely be viewed as an unnecessary expense. However, it is vital for couples to realise that things can and do change – one party may win the lottery, a loved one may leave a large and unexpected inheritance, or one party may start a business that reaches a level of success they couldn’t have imagined in their wildest dreams.

Today, separating spouses are privy to the ‘online quickie divorce’, a service that allows parties to get divorced for a fixed fee of as little as £100 plus VAT. Whilst such services may appear appealing and are often very useful for those looking to keep their divorce costs to a minimum, it is imperative for couples to understand that such a service often does not deal with matrimonial finances and instead only take the couple to the decree absolute stage of their divorce.

In order for both spouses to move on with their independent lives after divorce, it is crucial that they draft, approve and sign a final financial order before submitting it to court for approval. Whilst the cost of a lawyer drafting such an agreement may be a slight inconvenience, it will be miniscule compared to a claim that could be brought years later by an ex-spouse with a hefty sense of entitlement. Nobody wants to be looking over their shoulder after divorce and the best insurance against having to do this is to tie things up at the point of divorce instead of leaving loose ends

Artist divorce case highlights sexism of the UK courts – and it’s not the women who are suffering

A stay-at-home father who was supported by his millionaire wife is appealing a court decision that would see him receive a £300,000 lump sum, as well as a long term £50,000 annual maintenance payment.

His appeal is based on the fact that his lump sum payment is to be partially funded by the sale of the former matrimonial home, in which he still lives, as well as the fact that his maintenance payments were calculated on the basis that he goes back to full-time work and secures the salary that he had 11 years ago.

Rupert Nightingale had worked as a picture editor and photo director for Men’s Health magazine until 2003, when he gave up his full time profession to pursue a part-time career in fine art photography, whilst also acting as a househusband. He was married to his wife, Kirsten Turner, for seven years, having dated her for over a decade beforehand. Ms Turner had supported the family during the marriage, earning £420,000 per annum as a partner at PWC.

Mr Nightingale believes that he should be able to remain in the former matrimonial home, have his maintenance payments upped by 50% and continue being a househusband on at least a part-time basis. He believes that the court has been guilty of gender bias and does not think that the same order would have been made in relation to a housewife in his position.

As Lord Nicholls explained in White v White [2000] , fairness should be the ultimate consideration by a court dealing with financial distribution on divorce. However, the focus in this case should not be whether the law is fair to homemakers, but rather whether the MCA 1973 S25 factors have been applied in the same way that they would have been if Mr Nightingale had been a woman.

The strongest argument in Mr Nightingale’s favour is likely to be found through S25(2)(f) MCA 1973, under which the court must give consideration to the contributions each party has made to the welfare of the family. It has been highlighted many times that there must not be any bias in favour of the breadwinner and against the homemaker, and this has protected many women who have sacrificed their careers to be housewives and child-carers.

Surely then, Mr Nightingale, who acted in the same manner, should also receive such protection? After all, the decision for him to cease full time work will have been made jointly by him and his ex-wife, and it would no doubt have been his support as a househusband that enabled Ms Turner to progress so far in her career.

When considering financial resources under S25(2)(a), the Court is to take into account not just present resources, but also those that will become available in the foreseeable future. For this reason, a spouse’s earning capacity can be considered and this explains the court’s decision to make an order based on Mr Nightingale returning to full-time employment. However, the court does not seem to have applied this factor in the same way in which they would have applied it to a woman in Mr Nightingale’s position, as they appear to have overlooked the fact that he has dedicated the past decade to childcare, which may have damaged his earning capacity.

The financial needs of a party to be considered under S25(2)(b) can often be reviewed jointly with the standard of living enjoyed by the family before the breakdown of marriage – a consideration under S25(2)(c). Mr Nightingale would have become accustomed to a certain lifestyle when married to Ms Turner – one that he will not be able to maintain unless he returns to full-time employment. It can therefore be said that the court order does not meet his financial needs, despite the fact history has seen women successfully claim that they need three houses.

The court may, of course, argue that they have not been sexist and that they would have applied the law in the same way if the roles of the couple had been reversed. They could claim that the basis of the order rested on the relatively short length of the 7-year marriage, along with the fact that the couple’s child is now spending four nights with Ms Turner and just three with Mr Nightingale. The latter factor may also justify why the court did not deem it appropriate to keep Mr Nightingale living in the former matrimonial home.

“The difficulty for Mr Nightingale,” says Katie McCann, Head of Family for Kuits, “is that it is impossible to say with absolute certainty what the court would have done if the spousal role had been reversed. There may be those who believe that the law is incorrect and that those who are able to go back to work should have to, even if they have taken many years out to raise their children. However, this is not the question at hand.

“The imperative question is whether the law is being applied equally to both sexes, and the case of Mr Nightingale seems to suggest that it is not. The S25 factors should not be simply about protecting women who are vulnerable, but rather about protecting any spouse in the financially weaker position. This case suggests that fathers who make such a sacrifice are not necessarily guaranteed the same protection afforded to mothers who do the same.”

Family Dispute Resolution Week: A Look at Mediation

Mediation will make the divorce process quicker, fairer and more empowering for both parties, says a family law expert at Manchester-based Kuits Solicitors today to mark the beginning of Family Dispute Resolution Week.

The comments come from Kuits’ Head of Family Law, Katie McCann, in response to further advancements made by the government to encourage divorcing couples to stay out of court in favour of mediation services.

“Last April saw the introduction of compulsory Mediation Information and Assessment Meetings (MIAM) for divorcing couples,” says McCann. “The purpose of these meetings is to provide the couple with information in relation to mediation and other forms of non-court-based dispute resolution. In a further attempt to encourage divorcing couples to use mediation as an alternative to the courts, a free mediation session will now be available, as long as one of them qualifies for legal aid.”

Previously, only the party eligible for legal aid was entitled to receive a complimentary session, whilst the other party had to pay for it. The Chief Executive of National Family Mediation, Jane Robey, says that the new scheme seeks to aid people’s understanding of what mediation can achieve, presumably by allowing them to experience the benefits of it first-hand.

MIAMs, along with the free initial mediation sessions, have the potential to enable ex-couples to reach agreements regarding finances and children outside of court. Commenting on the benefits of mediation the Justice Minister, Simon Hughes states: “Mediation works and we are committed to making sure that more people make use of it, rather than go through the confrontational and stressful experience of going to court.”

As well as being less stressful than court, an additional benefit of mediation is a financial one. David Norgrove, chairman of the Family Justice Review, estimates that, if used, mediation has the potential to reduce legal aid costs by £100million – and it is not only the government who would reap the financial rewards. Ex-couples would also benefit significantly due to the fact that only one mediator is required, as opposed to two lawyers, and the hourly rate of a mediator is commonly less than that of a lawyer. However, families should be aware that, should mediation be unsuccessful and lawyers instructed at a later date, costs are likely to end up higher than they would have been if lawyers had been instructed at the outset.

“There certainly exists the potential for mediation to be a success due the fact that it allows for effective communication between the parties, who are able to speak directly, as opposed to having to pass their opinions and negotiations through their lawyers,” says McCann. “Not only can this save a lot of time, but it also ensures that words are not minced or misinterpreted. Without the court getting involved, an ex-couple can potentially reach a subjective, tailored arrangement that works best for them, without feeling that they are being ordered to do so. Significantly, it is often the non-forced nature of the arrangement reached that attracts separating couples to mediation.”

McCann also thinks that the fact that an ex-couple have managed to sit down and reach an agreement using mediation will mean that they have effectively communicated and compromised with each other. The skills acquired will hopefully allow them to renegotiate their arrangements should they require adaptation in the future, especially in relation to arrangements for the children.

“Due to the benefits attached to mediation, it is understandable why the government are encouraging more couples to attempt it,” says McCann. “Although couples cannot be forced to mediate, the existence of compulsory MIAMs suggests that there is some sort of pressure being placed on separating parties to consider it. However, the government should consider whether this pressure could potentially threaten the success of mediation, due to the fact that it removes the voluntary element – if an ex-couple attend mediation against their wishes, there may be less chance of them co-operating in order to reach a suitable agreement.”

McCann goes on to note that, even when attendance at mediation is voluntary, there are still risks attached to the process, particularly for cases involving intricate financial complexities: “Mediation does not attract the same disclosure mechanisms as the court does and therefore a party may find it easier to conceal financial information during the mediation process,” explains McCann. “This, together with the fact that the mediator remains neutral throughout the process, offering no legal advice, can result in an unfair agreement being reached. As long as both parties are aware of these potential limitations, for many, mediation will provide a welcome alternative to court proceedings.”

Ultimately, McCann applauds the government’s support of mediation: “Anything that empowers couples going through the upset of divorce is a great thing. A settlement reached on their own terms is always better than an artificial result imposed by a stranger: the judge. At Kuits, we are great supporters of empowering clients to reach fair and equitable resolutions in the quickest and most effective way.”

“Of course, while divorce cases can often be extremely acrimonious (and therefore the government cannot expect every separating couple to mediate), for the majority of separating couples, mediation provides a real opportunity for them to settle their disputes outside of the court room – and the service is set to get even stronger in the future.”

Indeed, from January 2015, the Family Mediation Council (FMC) will introduce a new accreditation scheme and new professional standards that all mediators will have to work towards. In addition to this, all mediators and those training to be mediators will have to register with the FMC. It is hoped that the stricter criteria will result in a greater confidence being placed in the mediation system, which in turn will result in a rise in its popularity. Although the government is unlikely to ever make mediation itself compulsory, if its effectiveness is well documented then couples will be eager to use it without pressure.

Billionaire Hamm’s is one of the biggest divorce settlements in history, but is it big enough?

American entrepreneur Harold Hamm, best known for his position as CEO of Continental Resources, has been ordered to pay his ex-wife, Sue Ann Hamm, $995.5 million in what has been referred to as one of the biggest divorce settlements in history. Although an enormous figure to most, it is only a fraction of Mr Hamm’s $14 billion empire and Sue Ann plans to appeal the decision on the grounds that it is inequitable. For this reason, the ruling invites an intriguing question – is the Oklahoma County Court’s decision reasonable compared to the conclusion that a court in England and Wales would have reached?

Oklahoma is an equitable distribution state when it comes to the division of property on divorce. This means that any settlement must be just and reasonable. In order to achieve this, a judge must take into consideration the contributions of each party during the marriage, as well as deciding what each ex-spouse needs in order to move forward following the separation. Also to be considered is the standard of living enjoyed by the ex-couple whilst they were married and any factors that are clearly relevant – such as a spouse’s ability to pay. As the 24th richest man in the United States, it is fair to assume that Mr Hamm wouldn’t exactly struggle to make payments to his ex-wife. One would also be forgiven for suspecting that the ex-couple enjoyed a rather comfortable standard of living.

Whilst equity is central to property division in Oklahoma, its synonym fairness is the main consideration of judges making financial orders following marriage breakdowns in the UK. But what exactly is fair? And would Lord Nicholl’s famous ‘yardstick of equality’, together with the S25 factors of the Matrimonial Causes Act 1973, place Sue Ann Hamm in a better position? Let’s consider the facts. Harold 68 and Sue Ann 57 were married from 1988 until Sue Ann filed for divorce in 2012. Although Harold made mention of the fact that the couple had been separated since 2005, in England and Wales a marriage of 17 years could be considered long for the purposes of financial distribution. The affair that Sue Ann alleged Harold to have had would be irrelevant in an English court, as only conduct with the ‘gasp factor’ would be taken into account. The ex-couple have two children together: Jane, 23, and Hillary, 20. Although a UK court would investigate their financial needs together with their earning capacities, the reality is that this would not be a huge consideration due to the fact that they are both over the age of minority.

In Oklahoma, a significant factor for consideration was how Mr Hamm acquired his fortune. Just your ‘regular’ multi-millionaire when he married Sue Ann, Harry went onto purchase one million acres of land leases, which saw Continental Resources become a major oil producer and in turn propelled him into billionaire’s territory. Oklahoma law states that money earned during a marriage can form part of a divorce settlement if made through skill, as opposed to ‘luck’, or a change in the economy in which case it cannot. Mr Hamm’s argument that he had ‘stumbled across’ his additional wealth fell short when Judge Haralson stated that Harold’s skill, effort and leadership had been the driving force behind the success of Continental Resources.

Although Mr Hamm’s argument was unsuccessful, looking at how wealth has been generated in this way would be completely alien in the UK. Whether by luck or skill, this amount of wealth would fall into the pot for consideration.

A consideration of the UK court would be the needs, obligations and responsibilities of both Harold and Sue Ann. Due to the extreme wealth of the couple, this factor is likely to be reviewed in conjunction with the standard of living enjoyed by the parties before the breakdown of the marriage. This is because the ‘needs’ of a party are extremely subjective and will therefore be very different depending on the lifestyle a party has become accustomed to. A UK court would be looking to ensure that Sue Ann would be able to continue living comfortably; however, the difficulty arises when trying to decide how much money she will need to do this. Realistically, the almost $1 billion that she is set to receive in Oklahoma would allow her to have a life of luxury beyond anyone’s wildest dreams.

Also relevant is the fact that Sue Ann Hamm was not a lady of leisure throughout her marriage. She was a lawyer in Harold’s company when the couple married, playing a significant role negotiating the company’s land deals. Her work could be found to be a significant contribution to the family, alongside Harold’s contributions. Also, if she stopped working to take care of the children (which is currently unreported), she could have an argument to be compensated for the loss of her career.

Taking all of the above factors into account, it appears that there could be a strong argument in the UK in favour of Sue Ann receiving an equal distribution. After all, she had a long marriage and contributed to the family’s welfare. In addition, Harold certainly has enough money to fund an equal split. However, the ruling of Cowan v Cowan[1] throws a significant curve ball into the equation. In this case, the Court of Appeal held that a stellar contribution by one spouse is enough to justify a departure from the yardstick of equality. Charman v Charman[2] seems to confirm that Harold’s $14 billion business could be viewed as stellar, hence creating a shift in his favour.

So what would all this mean for Sue Ann here in England? All the factors certainly point to potentially more than the 1/14th share she has been awarded. Some might say it’s no wonder she is trying her luck on appeal!

[1] [2001] 2 FCR 332 [2] [2007] EWCA Civ 503

New Presumption of Parental Involvement: Is the law too concerned with appeasing the parent?

The welfare of the child has always been the fundamental consideration for courts dealing with child arrangements following a couple’s separation. The welfare checklist set out in S8 of the Children Act 1989 provides statutory guidance that requires certain factors to be considered. Amongst other things, the wishes and feelings of the child and the child’s needs are considered, so that the most appropriate arrangement is reached. Due to the subjective requirements of each child, extreme care must be taken to ensure that the specific needs of the child are met.

Consideration must be given to where the child should live and how often they should see or speak to each parent. Until recently, these matters were addressed through residence and contact orders respectively; however, these were replaced with the all-encompassing child arrangement orders in April 2014. The purpose of the amendment was to shift the focus away from the name of the order and towards the content. Too often, parents were being side-tracked and, instead of focusing on their child’s best interests, they were becoming fixated on becoming the parent with residence. By removing the concept of a ‘winner’ and a ‘loser’, it was hoped that the focus would return to the child.

A further change to the law came into force on 22 October 2014, whereby S1 Children Act 1989 was amended to include the presumption that it is in the best interests of the child for both parents to be involved in the child’s life, unless evidence to the contrary is shown. Explaining the legislative changes, Mr Justice Hughes stated that, “No parent should be excluded from their child’s life for no good reason.”

But when has the law ever allowed this to happen? Surely it goes without saying that as long as it is safe to do so, then parental involvement will be encouraged? Judges have been dealing with parental disputes for many years and reported cases show that even when a parent’s conduct has been questionable some sort of contact has been maintained, as long as there is no risk to the child.

“As a result, one could be forgiven for thinking that the amendment brings nothing new to the table,” says Katie McCann, Head of Family Law for Kuits. “However, what it does do is shift both parent’s involvement from being a consideration to a presumption that is not to be strayed from without good reason.” As Mr Justice Hughes goes on to explain, “This is not about giving parents new ‘rights’ but making clear… that the family court will presume that each parent will play a role in the future life of their children.”

It is important to clarify that the changes to the Children Act do not create a presumption of equal parenting. Although this idea was considered initially when the above provisions were drafted, it did not come into fruition, and rightly so. A presumption of a 50:50 split in relation to parenting would not compliment the welfare principle and would be a potentially dangerous move in some cases. The risks attached to such a presumption are highlighted by Australian family law and the devastating case of 4-year-old Darcy Freeman, who died at the hands of her father in 2009. He had been given access to his children under the Australian shared parenting law, despite concerns from his ex-wife as to the safety of this. This tragic case emphasises that a presumption of shared parenting can easily jeopardise the safety of a child, without relevant checks and balances being in place.

“The UK law appears to tread with caution by expressing that the presumed involvement may be direct or indirect,” says McCann. “Although the importance of child-parent contact is acknowledged, the law is not prepared to endanger the child and therefore indirect contact may be appropriate where there is the potential of harm through direct contact. Although this approach appears to be balanced and sensible, the motives behind the recent amendments can be questioned. There is room to argue that the introduction of child arrangement orders and the insertion of the presumption of parental involvement are both for the benefit of the parent, as opposed to the child.

“As stated above, the involvement presumption has always existed and recording it in statute simply reassures parents that, unless there is a good reason to the contrary, they will remain involved in their child’s life. The introduction of child arrangement orders does nothing more than rebrand contact and residence orders by placing them in a slightly more modern and less stigmatising packaging. Massaging the ego of the parent that does not gain the label of a ‘residence order’ appears to be the main objective. By focusing on accommodating the parents’ feelings, it can be argued that the child’s welfare becomes less of a priority and this is unacceptable.”

The government do not accept that the focus has been shifted away from the child and explain that, on the contrary, the purpose of the changes is to ensure such focus remains intact. They claim that the aim of the legislative amendments is to promote a greater understanding of how the courts reach their decisions in cases relating to parental disputes. The hope is that, in doing so, parents will be persuaded to take a less rigid approach, secure in the knowledge that their involvement is desired.

“It is still early days and one cannot be sure of the effects, if any, of the legislative changes,” concludes McCann. “However, if the government’s outcomes are achieved, it is hoped that parents will stop trying to win the ‘custodial war.’ In turn, this will ensure that focus is placed on accommodating the child’s best interests and this, of course, is the ultimate goal.”

The Need for Greater Family Law Court Judgements

Many family law hearings in the UK are held in secret, but more will be published in the future, says the court of protection. Unless there are extremely compelling reason not to, judges will give permission to make the hearing public. More details will emerge from sensitive domestic disputes, even if some of them are anonymised. These new regulations will begin on the 3rd of February. Sir James Munby is the main man who has been pushing for these reforms to the family court system.

This move will improve public understanding about the court process, and hopefully incur greater faith in the system. Public debates about famous cases – such as the pregnant lady who was forced to receive a caesarean – are often misinformed because the facts aren’t readily available. False reporting isn’t always the fault of the media, if they can’t access the details of the hearing. With greater transparency, public debates and articles will be better informed of all the facts. This will hopefully create a less biased account of events.

The Decision

There are two types of judgements: normally published cases and possibly publishable cases. These categories provide the framework in which a decision is made.

The judge will only publish the hearing if he or she deems that it’s in the public interest to do so. Families under protection, children, and vulnerable individuals that can’t usually make their own decisions, will obviously continue to benefit from anonymity. A judge will choose to keep a judgement or case secret, if this would breach any important anonymity. In many cases, the judge will decide what is appropriate for publication – he or she is not allowed to publish information at the request of a party or the media. The judge must decide that it’s within the public interest.

Is That All?

Exonerated parents or anonymous parties may wish to discuss their experience with the media; sometimes this is advantageous to the case, as it can bring forward more evidence or witnesses. Otherwise, there are strict rules about what the media can or can’t publish from the family courts. Journalists can attend hearings, but they need to obtain the court’s permission if they want to report the case.

There may be details which a journalist isn’t able to publish, due to the sensitivity of the details.

In the court of protection, the hearings are private – the media and the public aren’t allowed in. This is to safeguard the rights of vulnerable people who would suffer unduly if the contents of the case were made public. It seems like this will happen more rarely in the future, as the government is on an anti-privacy binge.

How Military Divorce Differs from Regular Divorce

Military divorces are much like any other divorce. Two people decide they no longer want to be married, and go through the process of separating property, assets and determining child custody issues. However, the way these concerns are addressed, and the way things are separated between the two parties, requires a consideration of the military member’s lifestyle and benefits. Understanding how survivor benefits and military pensions are divided up, and how custody of children is determined, is important for both spouses considering divorce.

Child Custody

Many military marriages involve an active duty spouse and a civilian spouse. The lifestyle of these families adapts to the military world, with active duty personnel moving regularly for various deployments, and with the military spouse frequently away from home. Families that fit this description should be aware that the courts will rarely grant full custody to the active duty spouse.

When determining child custody, the courts always look out for the best interests of the child. It is understood that, while the active duty spouse is doing much for his or her country, the lifestyle is ill suited for raising children. Military families should assume that child custody will go to the non-active spouse, and this will likely include child support payments.

Division of Military Pensions

Active duty service members are entitled to a pension after 20 years of service. The courts answer the question how to divide up this pension in the case of divorce. Most military couples are aware that the non-military spouse is entitled to half of the pension after 10 years of marriage. However, not all are aware that this division is negotiable.

The couple can come to an agreement on the division of the pension in their own way. This includes if the marriage has been shorter than the standard 10 years, and it includes the possibility of a payout of less than 50 percent of the pension after the 10-year mark.

The 10-year and 50 percent standards are simply guidelines for the court to go on. The arguments presented by both divorce attorneys and the decision of the court can produce a number of different results. Each spouse may wind up with more, or less, than he or she was aiming for.

It should also be noted that only after ten years of marriage can the finance center pay the awarded portion of the pension to the spouse. If the non-military spouse wins some of the pension, but the marriage did not last for at least ten years, it is the responsibility of the retiree to make the payments to the ex-spouse.

Survivor Benefits

Some spouses make the mistake of assuming that the Survivor’s Benefit Plan (SBP) – the payout that happens upon the death of the military spouse – will still go them in the event of death. While the SBP can be awarded to the divorced spouse during the divorce proceedings, this is certainly not guaranteed.

If the ex-spouse is not awarded the SBP, then he or she will stop receiving pension payments in the event that the military member dies. This is something to remain aware of during divorce negotiations.

Military Divorce Lawyer

Spouses considering a military divorce should seek the help of an experienced military divorce lawyer. This will help ensure the best possible results from the divorce.

Family Law Property Issues in Australia

(Victorian & Australian Law)

In recent times, the jurisdiction of property disputes in Family Law has broadened. Traditionally, property was only divisible between married or divorced couples. De-facto and same sex partners are now able to apply for a property settlement, though under different law. In the absence of agreement between the parties, an application for the settlement of a property dispute is made to the court, to be decided on the basis of need.

The settlement reached becomes legally binding and enforceable by the courts. Here’s a rough guide to what usually happens in these situations…

Applications

Parties can make a property settlement by agreement or, if agreement cannot be reached, make an application to the court for a property settlement. Applications for the division of property after divorce can be made to the Family Court or to the Federal Magistrates Court where a property dispute is worth less than $700,000.

Only parties who are or were married can make an application for a property settlement under the Family Law Act 1975 (Cth). In the case of divorce, an application must be made within 12 months of receiving the decree absolute. De-facto and same sex partners can make an application under the Property Law Act 1958 (Vic) in the Supreme Court, County Court or Magistrates’ Court.

Once an application is made, the parties will be asked to attend a case conference, with the aim of settling the property dispute by agreement before it goes to court. Present at this conference will be the parties, any family lawyer involved and a court registrar. If this conference is unsuccessful, the parties will go to court.

Property disputes in de-facto and same sex relationships (domestic relationships) are dealt with under the Property Law Act 1958 (Vic). A domestic relationship is a relationship between two people (regardless of gender) who live together as a couple on a domestic basis but are not married. The domestic relationship must have existed for at least two years for an application for a property dispute to be made under Part 9 of the Property Law Act . If there are exceptional circumstances, for example children being born out of the relationship, this two-year period can be waived. The relationship must have ended after 8 November 2001 for Part 9 to apply.

Property

The type of property divisible in a property settlement includes assets, cash, real estate, investments, insurance policies and superannuation. Debts are also taken into account. In a domestic relationship, as governed by the Property Law Act , superannuation and retirement benefits are not included in a property settlement. In making an order for property settlement, the court calculates the total pool of assets of the parties.

The division of these assets is based on both contributions made by each of the parties to the asset pool and future needs. The contributions of the parties include non-financial contributions, which means a homemaker will not be disadvantaged in this assessment. Future needs takes into account who is responsible for the daily care of the children, earning capacity, age, health and the financial circumstances of any new relationship. The aim is to distribute the property fairly between the two parties.

If you believe your partner is going to dispose of assets before the total pool of assets is calculated you can obtain an injunction to stop the sale taking place. Bank accounts and proceeds from the sale of any assets that has already taken place can also be frozen.

Spousal Maintenance

A party can apply for ongoing spousal maintenance if they can prove they are unable to support themselves. This application must be made within 12 months of divorce. An application for spousal maintenance is often included with an application for property settlement so that all financial issues are dealt with at once.

Spousal maintenance cannot be applied for where a domestic relationship exists.

Enforcement

If an agreement is reached between the parties, they can apply to the court for consent orders. This will make the agreement enforceable by the courts in case of dispute. Consent orders, once made, are final. A party must prove fraud, impracticality or other exceptional circumstances if they wish the consent orders to be set aside or varied.

If a party is not complying with the orders made, an application can be made to the court for enforcement. In this application, the party applying must set out exactly what the problem is. The court will then decide whether an order is needed to enforce the existing order.

A family law property settlement is an important process to go through after the breakdown of a marriage or domestic relationship. A property dispute can be settled by agreement between the parties or resolved by the court. Each case is unique and will be considered by the court according to its own circumstances. The court will not consider who is at fault in the breakdown of a relationship. Rather, it will be resolved on the basis of fairness and need.