The holidays often result in a flurry of new family law clients. One of the reasons may be due to a couple spending more time together than usual and one has decided to end the relationship. These separations can be impulsive and therefore not thought through and done without regard for the potential consequences. Sometimes these can start out as the worst separations for that reason. Caroline Counsel Family Lawyers can work with clients to get their separations back on track by identifying where things have gone wrong and offer practical advice to minimise the fallout of separation.
Whilst I can think of dozens of mistakes made by separating couples – I have narrowed the number to seven.
Mistake Number 1: Failing to get advice before you separate.
This is so important as I wish I had a dollar for every time a client said –“If only I had known….” By advice I also mean legal, financial, and psychological. The best rates of recovery experienced by my clients have resulted from clients surrounding themselves with a team of experts to guide them through divorce. It is also prudent to seek help outside the current professional advisers that you and your partner have relied on. For example, you would not announce separation to your current accountant if you did not want that information to get back to your soon to be ex. Make sure the help and advice you get is practical and easy to follow. Your advisers in this process are just that. They are not your friends, and they are not someone you ring up and chat to. You are paying a fee for a service, and you should ensure whoever you engage is an expert in their field and provide advice not just a fireside chat.
Mistake Number 2: Not getting your ducks in a row.
Make sure you know what is what. If you are the less financial half of the couple, educate yourself and find out what the financial situation is. Work out where the money is and whether it is at risk. Find out what you owe and to whom. What is the regularity of repayment of debt and how much? What assets are in your name, the other person’s name, joint names. Do you know your respective superannuation balances? Do you know what your assets are worth? Ensure that you have enough money to do what you are planning to do. Do not act or make unilateral decisions that escalate the situation or result in urgent orders being sought against you. For example, if there is cash in the bank, only take so much money as you need and do so on advice (this is a legal issue as much as it is financial so do not rely solely on financial advice). For example, do not empty the operating account of a business– leaving your ex and your business interests and those you employ in jeopardy. Do they hold your power of attorney (medical or financial)? Do you have a Will and if so, do you need to do a new one?
Mistake Number 3: Burning your bridges and escalating conflict at the point of separation.
Why is how you separate so important? It can influence the choices that each of you make about next steps. The wrong choice can lead to Court. The right choice may see your family resolve your separation with the lightest possible legal footprint in your lives. Some people feel the need to make it very clear that they will not reconcile and then act in a manner that is so mean hearted that it impacts of the ability of the couple to work together in the future – either on finalising the separation or the big one – parenting as a couple post separation. Conflict and violence should have no place in a separation. It should be as respectful as possible – to honour that which you have had and that which you want to have in the future – a better divorce and a brighter future for all concerned. I have also seen clients be taken on one last holiday – where both the couple and family got on famously – dinners out, walks on beaches, holding hands only to find on returning to home that separation is in full swing. The separating spouse had packed their other bags in advance. When asked why the separating spouse said, “I wanted to give them one last holiday to remember”.
Mistake Number 4: Don’t toy with the other persons’ emotions.
Often people separate without having obtained advice, without realising the legal, financial, and emotional consequences of separation on their children, their former partner and most perplexing of all, on themselves. They may then attempt to roll back their decision and seek to reconcile I am not saying there is no scope for separation because often a couple may separate but the reasons which led to separation are in fact not insoluble and with the right team around them, a couple can reconcile and address the impasse and reconcile with renewed commitment but also capability. The person who sets about separation in an ambivalent way can cause the most grief. Someone who tries to let the other person down gently, giving that person false hope through mixed messages and acts of kindness atypical during the relationship.
Mistake Number 5: Do not settle with a handshake agreement.
I often say to clients, a handshake agreement is not worth the paper it is not written on. That is never truer than when separating. Some clients come to us after the event and exclaim that they divided everything when they separated only to be on the receiving end of a demand for either a further bite of the cherry or a share of an asset that the client assumed they were retaining. Superannuation interests are often forgotten by clients when they negotiate a Do It Yourself separation. There are also tax, stamp duty and other reasons why a couple can financially benefit from ensuring the separation of their assets and liabilities is properly documented and either Consent Orders are made by the Court or a Financial Agreement is entered into consistent with the provisions of the Family Law Act. A lawyer’s role is to ensure that nothing is overlooked, and the final agreement is captured by whatever method of finalising your settlement is chosen.
Mistake Number 6: “The kids don’t need to know”, or “I am telling the kids everything”.
Adults going through separation mistakenly believe this is only happening to them. It is not. It is also happening to the children and whilst the Family Law Act is couched in terminology to ensure that the bests interests of children is paramount, this is usually construed in the eye of the beholder. There are so many mistakes parents make, I cannot include all of them in this blog but suffice to say, it is my greatest wish that a separating couple would work collaboratively to ensure that they give their children the best possible memories of separation – which is to say no or little memory of that time in their lives.
The kids don’t need to know!
Oh, they already know. They have possibly known longer than you that you are going to separate. Their survival depends on early detection of disquiet or disharmony between parents. They may well have sensed the escalation so for you to want to protect them from the emotional fall out of separation is laudable but that is also impractical. Children need to know that they and you as parents are going to be okay. They want to make sure that little in their lives will change and if there is change that there is as little disruption to them and what their routines are. The whispers or fights after children are in bed are all heard and worried over. So, wherever possible and provided there is sufficient good will between them, it is important for separating parents to work together to ensure they are on the same page when it comes to what they say to the children and when. These conversations can be assisted or even facilitated by family counsellors and psychologists who routinely work with separating families. Children should be heard, respected, and listened to by their parents and if they want a say about what the family’s future looks like, that should be also addressed. Of course, families who have been subjected to family violence may not be able to participate in such high level child focused conversations and Court based outcomes may be inevitable.
I am telling the kids everything!
The parent who unilaterally takes it upon themselves to be the one who controls what is said to the children is also the one most likely to emotionally damage and overly involve them in what should be a parental dispute. A parent who implicates children in the dispute, informs them about Court processes and what the other parent has included in Court documents, makes them choose sides, fills them with their own anger, hurt or resentment about the other parent, is most certainly not acting in a child’s best interests. Children should be protected from conflict and not be made to choose between parents. They do not need to know the reasons why their parents’ relationship floundered, but they do need to know they are loved by both parents, they will be okay, and their parents are working together to ensure that the best possible outcome for their will be their joint ambition.
Mistake Number 7: I am a free agent to do what I want!
Clients make the mistake that post separation they can do anything they like – hide assets, not disclose their assets, resign from their job, transfer assets to other family members or sell an asset to a friend for little money. There is no such thing as “mine” post separation. The law will assist your ex in such situations. The person who resigns still has income earning capacity which the Court will consider when assessing what maintenance, they should pay. If they sell or transfer assets which otherwise form the pool to be divided with their ex, the Court can reverse those transactions. The Court can compel litigants (parties to court proceedings) to produce documents in relation to their interests and assets. The Court can also make costs orders against the person who attempts to thwart or frustrate the litigation process.
Before you make any decisions, which can result in adverse findings against you in Court, it is best to get advice. Legal advice can save you both money but also from a course of action the consequences of which you may not have contemplated.
If you wish to avoid the mistakes many people unwittingly make or want help to get to a settlement with your ex, Caroline Counsel Family Lawyers can work with you to tailor our advice to your specific situation.
Caroline Counsel AccS (FamLaw)
Principal Caroline Counsel Family Lawyers
FDRP: Nationally Trained Mediator and Arbitrator: Collaborative Professional
Caroline Counsel Family Lawyers
P: +61 3 9320 3900
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers. The contents of this blog are relevant as of 1 February 2024. We recommend you obtain specific advice relevant to you and your family’s situation.