TOP 10 THINGS NOT TO DO POST SEPARATION
- When seeking a solicitor to act for you, don’t choose someone to be your friend.
Your solicitor needs to maintain a professional attitude and should not approach your matter as ‘siding with you’. Your solicitor needs to take a full history of the issues and provide advice to you on many levels, including realistic expectations of outcomes you hope to achieve, possible costs of both solicitor fees and court filing fees and also protecting any children from the often negative impact of court action.
In this jurisdiction it is not considered to be a win and lose scenario.
Many family law solicitors these days take a collaborative approach where they encourage clients to settle out of court. This is the best approach if possible and will save a lot of money for the clients. The Family Law Act 1975 has several principles including the best interests of the child and each party encouraging a relationship with the other parent.
Many people think the best interests of the child is something that they need to determine on a personal level. This is not the case. The best interests of the child include a relationship with both parents bearing in mind that if one parent has any behaviours that may harm the child, this needs to be considered in the overall context.
- Don’t use the children as weapons against your ex
Often one parent will try to monopolise the time the children spend with them purely for financial reasons.
One parent will sometimes accuse the other of using illicit drugs, having serious mental health issues or using alcohol to excess.
If you are accused of any of these or other issues the best thing to do is avoid direct confrontation with that parent and recognise that you at liberty to provide your responses in writing to be filed with the court. If one party make such accusations they will need to prove this via police records, drug testing, Families SA documentation and so on. Remember it is never helpful to respond to SMS text messages or emails where the other party is using blaming language and making accusations.
Any response in these situations is destined to inflame the matter even more and can be useless in trying to resolve issues.
- Don’t involve your new partner in the situation
Be wary of introducing your child/ren to a new partner and particularly if you are trying to resolve issues out of court. New relationships can hamper discussions as usually one party will be resentful that the other has re-partnered so quickly and before any resolution is achieved either by consent or through the court process.
Children need to be protected from any contentious discussions or arguments, whether this is in person or via social media, text messages or emails.
Remember, over 85% of our communication is through body language and any facial expressions or physical aggression (such as throwing items) may be witnessed by children and may traumatise them.
- Don’t sign anything before getting independent legal advice
If one party engages the services of a solicitor, you should also do so. This is a federal jurisdiction and even if you have represented yourself before, for example, in a Magistrates Court matter or at a Tribunal hearing, there are vast differences between the various jurisdictions.
In the Family Court and the Federal Circuit Court, where family law matters are heard, every matter must have written documents lodged with the court. These documents must be in a particular format and contain information that will assist the judge to help you progress the matter and reach resolution.
In other state jurisdictions much of the information heard in court is through oral submissions. If you try to do this in the federal jurisdiction you will find yourself feeling very frustrated because when you try to express your opinions in court you will only have a few minutes to do so and will more than likely be confused by the language used, the procedures and what orders you need to be seeking to try and resolve the matter.
A solicitor will cost you money! There is no getting away from that. However, if you go it alone you will more than likely find any decisions made via negotiation or by the court will not be as favourable as they could have been if you had retained a solicitor. It is a very good example of a false economy to try and do it yourself if you are up against another solicitor!
There is actually a Scale of Costs set for solicitors by the Supreme Court and this will give you a rough idea of what you can be charged. At Adelaide Family Lawyers we aim to keep costs to a minimum wherever possible and as such bill just under the scale of costs recommended by the Supreme Court.
- Don’t use negotiations as a mudslinging match
No matter what the history with your ex, if you are trying to resolve the situation out of court, be very careful what you say or imply in negotiations.
Going to court involves high costs which can get out of control if you raise personality flaws or say or do anything that you know will inflame the situation and cause both of you to dig your heels in. You need to realise that to settle out of court requires compromise and that you will not necessarily get everything you want.
You need to be guided by your solicitor who will advise you of what you can hope to achieve in realistic terms. Whatever you do, do not take advice from family and friends, because everybody’s situation is different and your situation is specific to you and your children.
No matter how much you feel you have been wronged or how much you dislike your ex there is nothing to be gained by engaging in tit for tat accusations. Be aware of your ex’s sensitivities and realise what will inflame the situation and conversely what will be an aid to negotiating.
Your ultimate aim should be to resolve issues in a cost effective manner so that both parties can get on with their lives and particularly where children are involved, to resolve the situation with the least amount of trauma for the children.
- Don’t give in just to save the peace
The last thing you want to do when your spouse announces they want a divorce is to become completely acquiescent. Many people are manipulative, and if they think they can manipulate you into getting what they want out of the divorce, such as money, property or care of the kids, they will do so.
You should not agree to anything and everything your spouse recommends.
If you take a passive attitude to your ex’s request for settlement or any court action you may find that he/she will manipulate the situation to get more out of you.
Make sure you consult a solicitor at the earliest possible opportunity and be aware of your options.
We often find that clients have agreed to consent orders which they did not necessarily understand at the time or had little or no understanding of the future ramifications. Often this involves Child Support Agreements which are often doomed to failure because they are not worded appropriately and do not consider future employment changes or other issues that have not been provided for in the agreement.
We are specialists in Child Support Agreements and are aware of the issues that arise from badly worded agreements that continue to affect client’s years later.
- Don’t let your emotions drive the negotiation process
In property settlement matters, do not enter into emotionally draining arguments which are based on vengeance towards the other party.
Disputes often arise on different items from the marital asset pool. During the negotiation process, if both parties have solicitors, you should be able to sort out who gets what. This is a process where the parties need to recognise that the asset pool should be split in a fair and reasonable way.
Do not take the attitude that you would rather pay out ten times what it is worth by going to trial and trying to obtain orders that will deny the other party’s objectives. You may regret this because going to trial takes the decision out of your hands and you may not get the orders you are after.
Don’t let anger and vengeance get in the way of being able to settle things reasonably and out of court. In the long run this is going to cost you less money and less emotional stress.
- Don’t put anything in writing you wouldn’t want the world to see
For example, if your ex sends you an email or an SMS text message belittling or accusing you, simply do not respond. This way, they will be confused that you have not retaliated because this is generally the response they are after.
If they receive this type of response from you, it fans the flames and they have more material to bite back at you. If you refuse to engage in this sort of behaviour eventually it will stop.
It is usually the case that at least one party needs to blow off a bit of steam at the beginning of negotiations or court action in family law matters and once they realise that it is not achieving anything they will generally back off. The important thing to remember is that anything you put into writing can be provided to the court as evidence.
- Don’t take off with the kids and risk a relocation order being made
Rarely will it be in the children’s best interest for you to move them away from the other parent.
The Family Law Act 1975 describes the process of moving the child to another town, state, territory or country as relocation. If you decide to relocate with your child and this inherently impacts the ability of the child to spend time and maintain a meaningful relationship with the other parent the court may make a relocation order forcing you to return with the child to their former place of residence.
This may also inflame the situation and cause the other parent to seek orders that the child live with them.
- Don’t be afraid to ask for help
Breakups are emotionally draining at the best of times but when you throw legal proceedings into the mix this can have a significant impact on your mental health. Engaging the services of a counsellor, psychologist or psychiatrist can help you navigate your way through the proceedings and begin the next chapter of your life.