Considering Separating? Just Separated? What do you need to ask your family lawyer?

Questions for a family lawyer…

It is natural to think that some of the first questions you should ask your family lawyer are:

1. What does the law say should happen in relation to my children?
2. What does the law say should happen in relation to our property and finances?

When you first meet many family lawyers, they might ask you to provide some questions about your circumstances and then plow on to provide answers to those questions above.

This is dangerous and in the end, often not helpful. The lawyer has only got one side of the story and will not have many relevant facts. Yet he or she will give you the ‘answer’ which no doubt you will use as your bottom line in any negotiations.

The questions that you actually need to have answered are:

1. What do I need to do to make sure the children and I are protected physically, financially and emotionally?
2. What do I need to do with regard to my former partner to ensure he/she is more likely to reach an agreement with me than not?
3. What process should I engage in to make it more likely than not that we can reach this agreement?

You can see that finding out what the law might say about fair arrangements for children or fair financial arrangements is not one of those initial questions. The key to a mutually acceptable arrangement in relation to children and finances is to understand what your needs and interests are and what your former partner’s needs and interests are, and then to choose what arrangements and outcomes could accommodate both.

This process is often called an interest-based negotiation. The traditional legal approach in family law is working out what the law says to ascertain your rights. The logic being that your former partner should find out his/her rights and agreement should be able to be reached equating those two positions. The problem with this is that it is not easy to work out what our family law says about children and financial issues. The court is given wide discretion, and two lawyers can easily come to a different conclusion on the same set of facts. The next problem is that the two parties almost always disagree on those facts.

A checklist to answer when you have just separated might include:

1. Do you need some professional help as to how to tell the children about the separation and to manage their response to it?
2. What arrangements can be put in place in relation to the children to ensure an appropriate continuing relationship between the children and both of their parents?
3. What steps do you take to ensure that you are financially secure? This might include preventing money being taken from bank accounts, securing copies of documents and the like.
4. When is the correct time for you to start considering long term solutions? Sometimes it takes a year or more before both parties are ready to deal with long term solutions.
5. What process should you put in place to discuss or reach an agreement for both the short and long term? This might include direct negotiation, mediation, collaboration or discussion through lawyers.

So in the end, beware. You don’t need to know what your rights are at the very beginning of the process.

Article By: Jim Dunn

CEO

Only our fearless Managing Director could keep us all in check and functioning like a well-oiled machine. Jim has in excess of 40 years of legal experience. Once upon a time Jim was one of Australia’s fiercest litigators; but having now attained a state of zen he is passionate about the benefits of collaboration for clients. When he isn’t reading books on why lawyers should eat bananas he manages to keep the rest of us feeling good about ourselves and he has steered the firm through 25 successful years (and counting).

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