You have separated, either by choice or because your ex-partner has made the decision for you. Either way, you may not be sure where to start. Not every separation needs to be dramatic and if both parties keep communication open and respectful, you may be able to finalise the matters arising out of separation amicably.
Here are 12 tips that may help make your separation more amicable.
It is really helpful if you can have all your documents relating to your separation in one place, and organised. Being organised will make the process smoother for you and will allow a quicker response time on matters important to the other party.
Create a file for all relevant documents such as your marriage certificate, your Healthy Divorce Workbook, tax returns, payslips, bank statements, credit card statements, loan statements, Trust and company documents, superannuation statements, valuations, and any other relevant property or financial information.
Maintain your file and organise it in a way that is easy to understand for you. We recommend organising your documents in according to their category e.g. all bank accounts statements together, all mortgage/loan statements together, all tax and income documents together and so on. Within your category group according to account, company or asset and in chronological order.
BE UPFRONT & OPEN
It is really important that both parties have an understanding of what each person’s objectives are. Hidden objectives or withholding information, or a perception of hidden objectives and hidden information, can be a barrier to reaching an amicable outcome. Being upfront and open usually results in respectful negotiations.
DON’T TAKE ADVICE FROM NON-PROFESSIONALS
An unfortunate reality of family law is that most people will have either been through a separation themselves or know someone close to them who has been through a separation. More often than not this leads to people thinking they are an expert in family law.
Naturally, people around you will have advice for you and they will tell you what you should or shouldn’t do, what you should and shouldn’t be entitled to. These advices are given with good intent, but they are not always correct.
The truth is that every separation is different with a unique set of circumstances; no one else has lived your lives, nor your relationship, and there are no two people identical to you and your partner. There is no ‘one size fits all’ in family law.
The other thing to keep in mind is that each person who experiences the trauma of going through a separation, is likely to deal with that trauma differently. That trauma is also likely to impact upon the ability of any one person to give an entirely factual and objective recount of their situation. The emotional nature of family law often distorts a person’s truths.
Your friends and family are well meaning but they often have emotional links to your situation and their advice can be underpinned by emotion and their alignment to you. They are not the correct people to be providing you the advice you need.
The same is true from other people who don’t specialise in family law. Ex-partners of the other partner, your new partner if you have one, accountants and solicitors who don’t practice exclusively in family law. Without having specialised knowledge of family law, they are likely to give you inaccurate or unhelpful family law advice underpinned by their own objectives.
For family law advice you need to seek advice from a lawyer who practices exclusively in the area of family law. If both parties conduct their negotiations in line with advices received only from a family lawyer, negotiations should remain amicable and respectful.
Hiding information or engaging in dishonest tactics is not helpful. It is often short-term gain but long-term pain. Being underhanded and dishonest leads to mistrust which severely damages the ability to be amicable throughout your separation. If mistrust or underhanded tactics result in family law proceedings being commenced, the Court has various powers to discover information and evidence. As a result it is difficult for anything to stay hidden.
There are an array of obligations placed on parties in family law matters, including an obligation to be truthful and to provide full and frank disclosure of your financial position. If family law proceedings are commenced and information you have been dishonest about is uncovered there can be serious consequences.
Family law is a game of ‘show and tell’, not ‘hide and seek’. It really is best to be honest and upfront, to enable an amicable resolution.
Stick to the facts! Filling out the Healthy Divorce Workbook will help you to detail all of the relevant facts and figures of the relationship. These are the basic facts that you will need to work though to finalise your settlement. If it doesn’t appear in the Healthy Divorce Workbook there is a high chance it isn’t relevant under Australian family law.
If each party can remain factual a negotiated outcome will arise a lot quicker.
DON’T KEEP REVISITING THE PAST
When you are going through the trauma of a separation, whether you initiated the separation or not, it is really hard to leave the past in the past. This is especially the case if the hurt of how you got to where you are now, going through the separation, is new or if there were negative and hurtful actions such as domestic violence, financial control or irresponsibility, or unfaithfulness.
In Australia we have a no-fault law. This means that the cause of separation, or who was ‘in the wrong’, has no bearing on the resulting family law matters, including the future care arrangements for children and entitlements in a final property settlement.
The relationship that you once had has finished and it is now time to deal with the important issues that will help you to move forward in your life. In family law there is no value in bringing up past wrongs with your ex-partner that are not directly related to a parenting or financial matter now. Past wrongs can rarely be changed and as a result revisiting them can often do little more than keep the hurt alive.
Amicable negotiations won’t really be possible until you can move beyond past issues. If you are struggling emotionally to get past these issues, it is a great idea to seek professional counselling for these specific issues.
TAKE IT SLOW BUT BE PUNCTUAL
Don’t expect agreement on your parenting arrangements or a property settlement to happen overnight; they will not! It takes time to resolve your family law matter, so you will need to have a degree of patience. Parents and children need to adjust, property needs to be dealt with and you both need time to think about your future.
With the above in mind, being prompt in your communications and courteous in complying with timeframes requested of you will go a long way in moving towards a prompt and amicable resolution of your family law matters.
THINK BEFORE YOU RESPOND
This is unlikely to be the only scenario in your life where you have been advised to think before you speak. It may seem obvious, but in your family law matter it is highly likely there will be scenarios where you have an overwhelming desire to quickly respond via text or email when you feel attacked, insecure or outraged at a suggestion. Those quick responses can be used as evidence should negotiations break down and Court proceedings ensue.
Don’t respond to anything when your emotions are heightened, if you are not focused or if you have an impaired state of mind, such as after consuming alcohol. It will be extremely unhelpful in moving your matter forward if you don’t take the time to think before responding.
You don’t have to answer to everything that is put to you, especially if it is not relevant to you reaching a settlement. If your ex-partner is finger pointing or bringing up issues from the past, you don’t need to add wood to the fire. Remember to stay on point with facts and figures, even if your ex-partner is not.
Write your response and sit on it. Read it again. Remove anything that is unhelpful to you achieving your goals. Ask yourself whether there is anything irrelevant, spiteful or unnecessary – remove that too. Read it again and then hit send.
BE CLEAR ABOUT YOUR POSITION
To be able to move past your separation and forward in your life it is necessary for you to reach final agreement on all family law matters arising out of the separation. You need to be prepared and ready to negotiate an outcome, and more importantly an outcome that is in your interests. It is critical that you are clear about what you want to achieve.
We suggest starting by writing down your goals for all of your family law matters, but likely your future parenting arrangements and your final property division. Order them in terms of their priority to you. Don’t be scared to be clear about what you are seeking. Being clear about your position and what you are seeking will help you in your negotiations and ensure you don’t lose sight during those negotiations of what you require.
BE READY TO COMPROMISE
Being clear about your position is important, as mentioned above, but you also need to be realistic in your expectations. Your ex-partner will have their own position and it is highly unlikely that you will both have the same ideas in mind as to what the future parenting arrangements and property settlement look like. To negotiate an amicable outcome both parties need to be ready to compromise on some points.
Once you have written down your goals, suggested above, we recommend that create three columns. In one column list all the goals or items you are not prepared to compromise on. In another list all the goals or items that are important to you, but that you are prepared to compromise on if you have to in order to reach overall agreement. In the third column list all the goals or items that you are prepared to compromise on and allow your ex-partner to have as a ‘win’. You can do this for all aspects of your family law matter, such as assets in a property settlement or time the children are to spend with each parent.
DON’T BE SPITEFUL
Being spiteful towards your ex-partner is likely to inhibit the ability for you to reach an amicable and negotiated outcome.
If hurt has been caused during the finalisation of a relationship it is common for a party to want to inflict pain on their ex-partner. Keep yourself in check and ensure that you are not doing things purposefully just to be spiteful. Being spiteful will likely make you feel better in the short-term, but it won’t assist in resolving your matter.
Common examples of being spiteful in family law negotiations include wanting to retain items of sentimental value to the other party, such as an engagement ring that was a family heirloom, wanting to retain an asset just because of knowledge that the other party wants to keep it, or insisting on time arrangements for children that are at complete odds with long-standing family traditions of the other party.
Keep sight of your overall goals in resolving your family law matters to enable you to move forward. Being spiteful will extend the process and keep you with the stresses of separation far longer than is necessary or helpful.
SEEK PROFESSIONAL ADVICE
When necessary, seek independent advice. Seeking professional help when you need it can save you money, time and headaches. The advice required may include the following:
- Family law advice from a solicitor practicing in family law to enable you to understand your entitlements and obligations;
- Financial and taxation advice from an accountant regarding your financial position, any business you may own and tax implications on any property division you agree on;
- Financial advice from a financial advisor regarding your future and how you can move forward;
- Financial advice from a mortgage broker to see if re-financing is possible if you want to keep a property;
- Expert advice from a registered property or asset valuer to ascertain the true current value of any real estate, motor vehicles, chattels and personal effects either party owns;
- Expert advice from a family consultant or appropriately qualified psychologist on what future care arrangements may be in your children’s best interests.