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!

Division of Property in a Divorce: Is Equitable Distribution More Equitable?

division property usa divorce(US family law) One of the first things a couple in the process of divorce will need to know is if the state you live in is a community property state or an equitable distribution state. A community property state allows for all of the property acquired during the marriage to be, loosely speaking, divided in half. An equitable distribution state differs in that it aims to provide a fair and balanced approach based on many different facts about the marriage and both parties.

Not mandating equal split of the assets, but rather an informed and possibly unequal distribution can be the best way to decide these issues in some cases, which is why some most states practice equitable distribution instead of community property. Your divorce attorney should help you understand how the law works in your area, whether you live in a community property or equitable distribution state.

Community Property

Community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alaska allows couples to opt in for community property, and Puerto Rico is also considered community property jurisdiction. For couples who get married in a Community Property State, whatever they earn or acquire during the marriage is co-owned equally by both husband and wife, and will therefore be split up equally in the event that the marriage dissolves.

The only exemption to this equal split is property inherited by one party, which would stay with that party completely in the event of a divorce.

The principle behind community property states lies in the collective family unit.

While two people are married, the fruit of their labors should go toward bettering the family unit, a community pool that exists for this very reason. In this sense, the community property states do have a valid argument. Let’s examine the typical scenario that some people might think of in the event of marriage dissolution.

Consider Bob and Sally

Imagine a husband Bob with a high paying job; he is the primary financial provider. Imagine the wife Sally also has a good job, but she only works part time due to the care she provides their one year old son Bobby Jr. Sally not only spends quality time taking care of Jr., she also cooks, cleans and acts as a sort of assistant to the ever forgetful Bob. If, over the course of the marriage, Bob manages to pay off his mortgage and save some money for a total asset value one million dollars. Suppose Sally was only able to contribute 30,000 to savings over the years. What little money she made she spent on clothes and entertainment, but it didn’t matter much to the family at the time because Bob was making more than enough for the both of them. Bob really appreciated the “feminine touch” Sally brought to the house, the home cooked meals and that Bobby Jr. didn’t have to spend most of his time daycare being raised by some stranger.

Many people argue that because Bob and Sally were working as a team for the good of their family, Bob would not have been able to be where he is today without Sally’s many contributions to the family, and there is just no way to put a price tag on that. With that mindset, it should make sense to just split everything in half right? Since Bob’s and Sally’s assets equal one million dollars plus the 30,000, they both should receive $515,000. This is what would most likely occur in a community property state.

This can also be seen as very unreasonable, it really can’t be that hard to figure out that “price tag” to put on Sally’s contributions.

Equitable distribution

Equitable distribution is all about finding a more balanced division of assets based on many factors. Many things enter into the equation such as how long the marriage lasted, what the established standard of living was, and the value of childcare and homemaking that each party contributed. Even whether one party invested in the other’s education or training, and the age, health, income or future earning capacity of both parties should be considered when trying to divide property. The goal here is not to split assets and debts directly down the middle and have Bob and Sally go their separate ways, the goal is to figure out what is most unbiased and fair distribution of property considering the circumstances.

Florida, for example, is an equitable distribution state so the outcome of the divorce might be somewhat different than both receiving $515,000. The court will start at that number (equal halves) and then perfect it based on the many factors stated above. Perhaps Sally would receive a little less, but it will be her equitable share. Sally may get the home to raise Bobby Jr. in until he grows up since she has put so much effort into making the house a home, and being there for Bobby Jr. as he grows.

Florida is also a “no fault” state, meaning that the division of property is not affected by the fact that either party has been unfaithful. It would be a mistake for Sally to assume that Bob’s affair would get her more property than him in the divorce proceedings. A divorce attorney  should be contacted should you have any queries.

There are a lot of factors to consider in the division of property, but ultimately each equitable distribution case will be different.

Does Online Divorce Make Divorce Too Easy?

Self-divorce, divorce legal adviceIt seems like an entirely logical conclusion: if ending a marriage is now as simple as visiting a website and spending a few pounds, then divorce is clearly too easy. This criticism – which we face quite regularly – may appear entirely reasonable. It is, however, glib at best and, at its worst, nothing short of irresponsible.

Marital breakdown is unfortunate and, it is certainly fair to say, unpleasant for all concerned. Yes, marriage should be encouraged and those couples that experience difficulties that threaten their union should be provided with assistance. But if a couple cannot resolve their differences, then legislation exists that allows them to divorce for a very good reason: there is little point in keeping a couple that are unhappy together bound to one another. Yes, such a transition can be hard for any children that may be involved, but common sense dictates that this will not be more damaging than growing up in a household within which neither parental figure wishes to reside. That is not to suggest that more should not be done for children of divorce (helping them to adjust and regulating the damage that divorce can cause should be both parents’ and, indeed, society’s main concerns) but that, however perverse it may seem, that their parents’ divorce need not have a long-lasting and adverse effect if managed correctly.

Ultimately, divorce cannot be made to be too easy – it is, with very few exceptions, an extremely difficult and emotionally painful process. This is why so few people (if any) take the decision to end their marriages lightly and will do everything they possibly can to try and save their marriages before deciding to even separate. Following this, many even choose not to divorce for several years. They do so for a variety of reasons from remaining in the matrimonial property for the sake of their children to the need to finalise agreements before legally ending the marriage through to indecisiveness. Having worked at an online divorce company for almost five years know (and having assisted many people during this time) I cannot recall a single client having purchased our services within the first few months of them having separated.

I certainly do not feel that we make divorce too easy and that’s because, in my opinion, you cannot make a divorce too easy. You can provide a customer with a positive service that makes the process and experience more tolerable, but you cannot make it enjoyable.

Theres no such thing as a ‘good divorce’

divorce lawSix out of ten parents do not believe that a “good” divorce exists, new survey findings suggest. The findings, from a poll by the counselling charity Relate, found that the majority of parents who have been through a separation do not agree that there is such a thing as a good split.

A similar number of those asked also said that although they had tried to minimise the suffering of children involved, the separation had a negative effect. The survey also highlighted the lengthy process involved in a marital or relationship split, with only four in ten saying that their separation had been complete within a year. 10% of those asked revealed that a separation had taken more than five years to complete.

The chief executive of Relate, Ruth Sunderland, highlighted the potential negative impacts of parental separation on children, suggesting that it can cause school problems, mental and physical health issues, and alcohol misuse. She added that “having strong relationships that go the distance in good times and bad and knowing how to manage the separation process can improve outcomes for everyone.”

The study also found that the Christmas spirit appeared to have had little effect in holding relationships together, with the first Monday of January seeing more than 19,000 calls to Relate. This was a rise of 53% compared with the first working day in December. This day has become known as “Divorce Day”, with many law firms regularly suggesting that they are inundated with such inquiries early in the New Year. This year’s Divorce Day figures were up by half on last year’s total, indicating that the nickname is becoming more and more applicable.

Relate’s findings support a previous study by Netmums, the parenting website, which suggested that divorce and separation has a much more serious effect on children than parents acknowledge or recognise.

Further down the relationship separation spectrum, government plans to remove legal aid in family law cases means that firms are beginning to offer reduced price services.

The mediator Marc Lopatin is one such law professional, having set up a service which he believes can cap legal fees at £1,600 per party. The package can be found online at http://www.lawyersupportedmediaton.com.

 

This article was written by K J Smith Solicitors, specialist family solicitors in Reading, London, Windsor and Henley-on-Thames.

How To Be A Good Parent Even After The Divorce

Being a good parent is hard enough on a good day. However, when you’ve just gone through a divorce, making sure that your kids are doing fine is always much harder. You can be a good parent after a divorce though so doesn’t think that this is an unattainable goal.

When you use your parenting skills in a divorce, you help teach your kids to deal with various challenges, helping them to grow into well-adjusted individuals. If you’re going or have gone through a divorce and are trying to figure out how to be a good parent through it all, use these tips.

Put The Child First:

Many times a divorce is going to be messy and complicated. You and your former spouse may hate each other and have trouble even being in the same room. However, this attitude isn’t going to do any favors for your child. You need to make sure that you’re not focusing on yourself throughout the divorce.

Since it can be a fairly lengthy process, talk to your children openly throughout the entire ordeal and ask how they’re doing. They may not be coping so well. Also, when you begin to figure out custody agreements and other important details that are about the kids, get their input. They may not be very happy about the entire situation, but involving them in the process and showing them that you care, is going to help with the transition.

Remember It’s Not About You:

Well, at least not entirely. Obviously, your divorce is going to be a huge part of your life, but you are an adult. You have increased coping mechanisms as well as a mature perspective that your children lack. If you’re starting to fall into the victim mentality, then make the decision to turn this attitude around.

Accept the fact that even in the worst of marriages, you probably made some mistakes as well. When you get to this point, you’re not only helping yourself, you’re also showing your kids that it’s OK to be wrong sometimes and you should always acknowledge your mistakes.

Look At The Positives:

It’s always hard to see anything positive coming from a divorce, but there are many life lessons that you can gain from going through this process. Similarly, your kids can also gain more experience from you. However, you can’t do this if you simply refuse to deal with the problem at hand. As you go throughout the divorce, take each experience as a life lesson.

Many of them are not going to be easy, but if you pay attention, you will come through this experience and be a wiser and stronger person throughout the rest of your life. Make sure that you talk to your kids throughout the process and mention some of the lessons you’ve learned. They can similarly take your lessons and apply them to their lives and future relationships.

Always Be Respectful:

When a divorce with children happens, it’s likely that both parents will have custody or visitation rights. This is going to be hard to deal with, but you can’t let your own feelings get in the way of your children’s happiness. Working through the challenges of successfully communicating with an ex is a goal, which you’re probably not going to get right the first time.

Try to maintain a respectful relationship with your former spouse. This not only sets a good example for your kids, it also helps to make the entire ordeal so much easier

These are a few of the basic ways to make sure that you continue to be a good parent both through and after a divorce. Divorce is difficult for both parents and their children, so make sure that you pay attention to your kids and continue to make them a priority throughout the entire process. Divorce can be a positive or negative factor in a child’s life depending on how you react to it. If you treat it as a learning experience, it can help to grow the relationship that you have with your children.

However, it does take time and effort, so make sure that you’re being a mindful parent throughout the entire process to make the transition easy for your children.

What We Can Learn From Celebrity Divorces

Celebrity DivorceThese days, it seems as if more and more couples are getting divorced. This is especially true when it comes to celebrities, whose marriages—and break-ups—are often front-page news. While some individuals believe that celebrities serve only as a form of entertainment, others suggest that couples may be able to learn something from their frequent divorces. In fact, celebrities may not only teach us how to keep a marriage stable, but also how to separate in a peaceful and respectful manner.

Communication is Crucial

If celebrities have taught us anything when it comes to maintaining a happy marriage, it is that communication is crucial. Proper communication not only helps individuals teach their partner about their wants and needs, but also assists when it comes to the development of stronger listening skills. Unfortunately, celebrities—and for that matter, non-celebrities—have the habit of demanding their desires, without considering those of their partner. Talking each and every day with one’s husband or wife is a must when it comes to managing expectations and maintaining a long and happy marriage together.

Take Your Time

There is no question that the prospect of getting married can be very exciting—especially when one believes that they are deeply in love with their partner. However, it seems as if many celebrities choose to “jump into” marriage before they have a strong understanding of the traits and personalities of their partner. Most marriage experts agree that men and women should take their time when it comes to getting to know their significant other before choosing to pursue a legal commitment. When it can be difficult to prolong the dating process, it may be crucial when it comes to avoiding divorce in the future.

Know When It’s Over

Despite the best efforts of many celebrities, some marriages simply weren’t made to last. And when a couple agrees that the end is near, they may also benefit by looking to celebrities for some tips and recommendations. While many celebrities do try to put on a good front for the sake of their fans and children, this may not be the best plan when it comes to the health of their family. In fact, the Huffington Post suggests that trying to keep a marriage together simply for the sake of children may actually do more harm than good in the long run.

Lawyers Aren’t All Bad

Finally, celebrity divorces have shown us that—despite their less than stellar reputation—many lawyers are not as bad as they are depicted. In fact, experts agree that having an experienced lawyer who is familiar with family law is crucial when it comes to surviving and thriving during the divorce process. Individuals who have never worked with a lawyer in the past may want to consider speaking with friends and family to identify a skilled and professional legal team. Interviewing a lawyer before making a financial commitment can be useful when it comes to finding the right professional for the job.

Bankruptcy: Watch out for the Marital Adjustment Deduction

divorce and bankruptcyWhen a person who is married decides to file for bankruptcy, the law permits him or her to do so alone, without requiring both spouses to file.  However, the non-filing spouse’s finances do play part in the filing spouse’s bankruptcy case.  The “means test,” including the “marital adjustment deduction” will be evaluated to determine whether or not the filing spouse qualifies for a Chapter 7 bankruptcy, or to determine the amount the filing spouse will have to pay unsecured creditors in a Chapter 13 bankruptcy.

The Means Test

Even though you may feel that the only way out of your dire financial situation is to file for bankruptcy, a Westchester county bankruptcy lawyer points out that under the strict rules of the bankruptcy code, you may not qualify for a Chapter 7 bankruptcy filing.  In a Chapter 7 bankruptcy,  the debtor essentially tells the court that he or she is unable to pay back any part of the debt owed to creditors.  In order to qualify, you must pass a “means test,” meaning that your disposable income must be below a certain level.  If you do not pass the means test, then under bankruptcy law you are presumed able to pay back at least a minimum amount of your debt, and you will not be permitted to proceed with a Chapter 7 bankruptcy.  As part of the means test the bankruptcy court will look at your last 6 months of income as well as your expenses.  Thus, even if you have a high income, if your expenses are also high, your may still qualify for a Chapter 7 bankruptcy.

If you are married, but separated and living in separate households, the income of your non-filing spouse will not be taken into consideration for the means test. However, if you are married, then your spouse’s income will be taken into consideration for the means test.  This could have a significant impact on the filing spouses’ Chapter 7 petition.  If the non-filing spouse’s income is too high, then you may not qualify for a Chapter 7 bankruptcy.  In this is so then the “marital adjustment deduction” may help.

The Marital Adjustment Deduction

As part of the means test, you are permitted to deduct expenses from your income.  The “Marital Adjustment Deduction” allows you to deduct any expenses that your spouse pays that are not normal household expenses.  These “other” expenses are known as “marital deduction expenses.”  Examples of marital deduction expenses can include credit card payments for accounts that are only in your spouses’ name, child support payment for your spouse’s child, business expenses, student loan payments, and payroll deductions.  The net result of using the marital adjustment deduction is that if significant, it may offset at least some of your spouse’s income that you had to include in the means test.  Thus, you may still be able to qualify for a Chapter 7 bankruptcy even though your spouse’s income is relatively high.

Alternative to Chapter 7

If after applying the marital adjustment deduction you still do not qualify for a Chapter 7 bankruptcy, you may be permitted to file under Chapter 13. While all of your debt will not be discharged, the total amount you repay your creditors will likely be significantly reduced and you will have 3-5 years to make the payments.   However, you will still have to disclose your spouse’s income and expenses, which may affect the total amount you have to repay your creditors.

The importance of Full Disclosure

Ultimately, both your complete financial picture and that of your spouse will likely be closely reviewed by the bankruptcy court to determine how the law will allow you to proceed with your bankruptcy.  Thus, it is important to be prepared with evidence backing up all claims regarding income and expenses, or risk having your case dismissed.  An even worse result would be having the bankruptcy court determine that you have committed or attempted to commit fraud.

Do you think it is fair that a non-filing spouse’s finances are considered when a married person files for bankruptcy?  What if throughout the marriage the couple’s finances remained largely separate?  Does this rule encourage spouses to legally separate or “pretend” to separate?

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.

Literature on Divorce for Older Children

divorce lawApproximately half of marriages, in the United States, end in divorce.  While not every married couple has children, it can be assumed that a large number of children are faced with their parents’ divorce each year.  When parents decide to divorce it is their responsibility, for the well-being of their child, to discuss the divorce with their child.  Many parents seek out additional resources, such as books, to make their discussion a bit easier or to answer questions that may be hard to answer on their own.  There is a plethora of books for younger children, specifically between the ages of 4 – 9, that are specifically written about divorce.  Many of the books are picture books with colorful illustrations concentrating on using simple concepts and a discussion of emotions.  Aside from “self-help” type of books, there are fewer books on divorce available for pre-teen and adolescent children.  While the needs of an older child are different from young children, a book addressing divorce can be helpful to an older reader.

Stereotypically, girls are most often classified as “readers”.  Much of the pre-teen and adolescent fiction and non-fiction literature discussing divorce has female protagonists or themes aimed at young women.  Parents of pre-teen and adolescent boys may need to search a bit more, but there are books with adolescent boys as the protagonists dealing with family issues like divorce.

Homesick, a 2012 release by Kate Klise, is a novel with a young male protagonist, appropriate for readers between 9 and 12 years old.  The main character, Benny, lives with his parents who have separated.  His mother has left the family and his father has hoarding issues.  Many readers may connect with Benny and the pressure and need to be responsible in his crumbling home life.  Reflected in a Kirkus Review, “Benny gets a job at the local radio station to scrape together money to pay the phone bill so he can stay in touch with his mother. She’s planning to get settled and return for him at the end of the school year, but Benny’s dad is spiraling downward fast.”

While Benny’s scenario may seem “too big to be true”, children of divorced parents may relate to Benny’s situation and his feelings.  Sometimes a story, bigger than their own, might make a child feel better about their own situation.

Children, of any age, may benefit from tools, such as literature, when dealing with divorce in their family.  Parents and children can connect through literature and gain a better understanding about divorce.  Literature can remind children, of any age, that divorce is not their fault, not their responsibility, and despite the situation, a parent’s love still remains before, during and after the divorce.

For more information about divorce please visit the website of Charles Ullman, a Cary, NC Divorce Lawyer at divorcelawnc.com.

The true cost of divorce in the UK

It is difficult to work out how to approach an article about the true cost of divorce in the UK.

For example, it would be possible to spend time discussing the emotional cost on both parties (as well as other people who might be affected, including any children), with this emotional cost generally increasing in line with the breakdown in trust and communication that is often associated with drawn-out legal disputes relating to a divorce.

It would also be possible to consider this from the perspective of the financial damage that is caused to a couple when they decide to separate, resulting in them needing to spread their assets and income much more widely in order to pay for 2 houses and separate lifestyles.

Each party to a divorce as also likely to have a view about how those assets and income that they consider to be their “own” ending up being shared with the other person, thus resulting in what they perceive to be an unfair cost. For example, any money from a recent inheritance might need to be shared with their spouse as well as part of their future income even after a divorce has been finalised.

Whilst all of the above issues are very important ones to examine when considering the true costs of a divorce, the aim of this article is to focus purely on the actual costs associated with the divorce process itself as I feel that these are often very unclear when the divorce process is started.

Part of the problem with addressing the issue of divorce costs is that in some ways this is similar to trying to establish the length of a piece of string as it is possible to spend anywhere from hundreds of pounds to tens of thousands of pounds on a divorce. To understand this, I will try to examine some typical scenarios for managing the divorce process:

1. DIY divorce

Whilst the removal of most forms of legal aid has essentially ended the possibility of a government-funded divorce, it is still possible to run the divorce process yourself. This will mean that the only costs associated with the divorce process are the court fee (which went up in July 2013) of £410, that now covers the full divorce process but that needs to be paid at the start of the process, and some minimal photocopying/postage costs. Whilst it is always advisable to consider whether independent legal advice would be appropriate, especially when there are children and complicated financial issues to discuss, there is no reason why someone who is comfortable with filling in forms and reading guidance notes should not consider a DIY divorce as an option if saving money is the priority and a very helpful government website can be found at https://www.gov.uk/divorce/overview

2. Online divorce websites

In recent years there has been an explosion in the number of companies offering to run the admin side of the divorce process via online websites, with some of these offering a divorce from as little as £37, although you will of course need to pay the £410 court fee and, if the divorce process does not go through as smoothly as hoped, you will then need to decide who to turn to for advice. Whilst I have had a number of clients who have used these websites with apparent success, this is only once the divorce process itself has been agreed in mediation, and it is important to consider whether you want to put something as important as a divorce in the hands of a faceless website rather than choosing to undertake a DIY divorce or instructing a solicitor to manage the divorce for you.

3. Fixed fee divorces

There has also been a growth in recent years in fixed fee divorces being offered by solicitors and it is likely that the competition in this area will become even fiercer in the coming years, thus leading to further reductions n the fixed fees. The advantage of these fixed fee arrangements is that you have some level of transparency with the fees involved but you will need to make sure that the £410 court fee has been included and check how the costs are likely to change if the divorce process is less straightforward than hoped e.g. if the other party defends the divorce or does not engage in the divorce process. If you choose carefully, then you should be able to find a suitable solicitor to process a straightforward divorce for somewhere between £1,000 and £1,500 including court fees.

4. Open ended divorce fees

When you instruct a solicitor to run the divorce process that is not on a fixed fee basis,  it is vitally important that you ask for clear guidance about costs and that you ask to be updated if it looks likely that the initial costs estimate will be exceeded. Failing to do this will leave you open to running up bills of thousands of pounds as your solicitor writes letters, makes phone calls and runs up additional costs at an alarmingly high rate, especially if there is any suggestion that the other party (0r their solicitor) is not in agreement with running the divorce process the way that your solicitor wants to run it. Ultimately, this could result in a contested divorce that costs each party tens of thousands of pounds,

Whilst the general examples above give a flavour of the choices that you have when considering a divorce and their respective costs, the big problem here is that all of these choices are designed purely to result in a divorce, thus meaning that there are often issues relating to the caring of any children that are unresolved.

Also, it needs to be understood that, unless a separate application is made for finances to be considered, you will not have resolved any issues relating to the finances, such as the ownership of the family home, the division of pensions and whether or not there should be future maintenance payments from one party to the other. Failing to address these issues at the time of divorce means that the window for one party to apply for a finance order remains open for many years and can lead to punishing legal bills in the future, not to mention the fact that it is likely that one or both parties will be in a financially vulnerable position without a court order to enforce any financial agreements that might have been reached either explicitly or implicitly.

It is therefore vitally important that you ensure that the finances (and children’s arrangements) are carefully considered during the divorce process and it is here that the true costs of divorce start to emerge. It is extremely difficult for the parties themselves to properly address the finances as the laws relating to finances are complex and there are many pitfalls to be avoided, with it being likely that the end result will either be one that is highly favourable to one party or one that damages the finances of both parties. It is also extremely difficult, if not impossible, for these issues to be dealt with by any online website or by any fixed fee package, as each situation will be unique, leaving just the option of open ended fees with solicitors and it is here where the true costs of divorce will become apparent. Some fortunate people who choose their solicitor carefully may receive all the advice and assistance that they need for a few thousand pounds each but there is a risk that the bills will exceed £10,000 per person and potentially go a lot higher, especially if any court intervention is required.

Of course, this is where family mediation can and should play its role. It should be possible for a suitably trained and experienced mediator to guide both parties through the divorce process (but with the parties completing their own paperwork or using one of the other options above once the divorce process has been agreed in mediation) and to, in the vast majority of cases, assist them to reach agreements about the children’s arrangements and the proposals for a full financial settlement, at a fraction of the cost that would be incurred between solicitors. It is likely that both parties will benefit from receiving some independent legal advice in parallel with the divorce process, as well as there being a need for any mediation proposals to be turned into legally binding agreements (or court orders) by a solicitor, but these legal costs should be comparatively very small.

Whilst each case is going to be different, from my experience it should be possible for all of the issues to be addressed properly within the mediation process for somewhere between £500 t0 £1,500 per person, with then just the court fees and some specific legal costs to add to this, giving a total cost of somewhere between £1,000 and £2,500 per person for the full process (but with there being additional costs involved if financial advisers or other experts are instructed during the process). As a mediator, I am aware that these costs are still significant for most people but I am also very aware of how much money will have been saved by both parties if they are able to reach agreements via the mediation process. I hope that this article goes some way to help others to become aware of the potential costs of divorce and to then enable them to make informed decisions about how to approach a possible divorce in the future without suffering from large legal bills or other unexpected and unnecessary costs.

Thank you for taking the time to read this post and I look forward to reading your comments.

 

Euan Davidson

Family mediator

Godalming Family Mediation

www.godalmingfamilymediation.co.uk