WHY MEDIATE A FAMILY LAW DISPUTE?

Going through a divorce is a hard thing.  In fact, it’s likely the last thing you feel like doing is sitting around a table with your separated partner to try to discuss your concerns openly and honestly.  Likely, feelings are hurt, trust is diminished and feelings of love have been replaced by feelings of bitterness.

Here are 7 good reasons why you should consider mediation in a family law dispute.

1 – It’s the law

If you need to sort out parenting (custody) arrangements, then the law says you must try mediation before going to court.  There are some exceptions to this that mainly revolve around serious domestic violence and/or a child being placed at imminent and serious risk of harm.

The law says that you must at least attempt mediation before litigation.  You must obtain a Certificate from a suitably qualified mediator to say you have at least attempted mediation.

Furthermore, most judges will require parties to property settlement disputes to attend mediation before the matter can proceed to Trial.

2 – It helps preserve relationships

If there are children involved, it’s worth remembering that you and your separated partner are going to be parents for the rest of your lives.  That’s right – the rest of your lives.  It doesn’t end when your child turns eighteen, or moves out of home, or any other circumstance.  You and your former partner will be parents together for the rest of your lives.  There’s marriages, graduations, grandchildren, etc, to look forward to.  Taking someone to court is not likely to endear them to you, and certainly won’t aid your long-term relationship.  Really, when all is said and done, going to court is going to war (and we all know how less effective, wasteful and tragic the effects of war can be).

Basically, it just doesn’t make sense to destroy the ongoing parenting relationship so critical to the happiness and wellbeing of your children before first attempting a collaborative and communicative approach.

3 – It’s flexible

You can spend as much time as you need with a mediator to explore interests rather than positions.  For example, you can deal with concerns such as “I’m concerned that Johnny doesn’t do his homework properly or go to be bed early enough on school nights while in the other party’s care” rather than positions such as “I’m not agreeing to Johnny spending school nights in the other party’s care”.  The court simply doesn’t have the resources to explore every possibility as to what may constitute a fair outcome.  This is often referred to as the “broad brush” approach.  However, in a mediation you can explore possibility to your heart’s content, and usually with a greater likelihood of a successful outcome.

4 – It’s empowering

It’s extremely empowering for the parties to determine their future rather than have a third party (like a judge) impose a decision on them.  Reaching agreement sets a positive precedent for future communications between the parties.  It also feels much better to decide your own future rather than have someone else, who has limited information about your family situation, make these decisions on your behalf.

5 – It saves you time and money

A mediation can be organised and convened within weeks, or even days if the parties are adequately prepared.  Litigation can take months, or even years. 

However, the less time a dispute runs for the less financial cost it causes those involved.  Litigation will generally cost around 10 times more than mediation.  For this reason, it’s often said the only winners in litigation are the lawyers!

6 – It reduces stress

This is closely related to the reduction in time.  The less time a dispute runs for, the less stress it causes those involved.  Essentially, litigation places a huge mental and emotional toll on those involved.

Also, the procedure of a mediation is a lot more laid back than the formal court environment.  Therefore, mediation results in far less stress on your and your loved ones than lengthy litigation.

7 – It’s strictly confidential

Nothing said in a mediation can be used in court.  This aspect of mediation is referred to as being “without prejudice”.  Thus, parties are free to speak openly, as everything said in a mediation is strictly confidential to the extent allowed by the law.

Having said that, parties should always be guided by their lawyer as to what they should or shouldn’t openly discuss in a mediation, to ensure they don’t lose a significant tactical advantage if the process doesn’t result in agreement and litigation follows.

While there will be many other good reasons to mediate, these 7 reasons should give you enough food for thought to try mediation before litigation.

If you would like to obtain family law advice specific to your personal circumstances, please contact me on: richard.mahler@mahlerfamilylaw.com or (07) 4638 0811.

Best of luck in the journey that lies ahead.

Disclaimer:  This is an opinion piece, and is Family Law information, not to be taken as Family Law advice.

If you would like a copy of this in PDF, please click the following link:  http://bit.ly/e2SIY9

How much child support should I be paying?

The Child Support Agency has an online child support calculator that makes it relatively simple to ascertain exactly how much child support you should be paying. 

Log on to www.csa.gov.au and follow the links to the relevant “child support estimator”.  

The assessment primarily relates to each party's income, how much time the children spend with each party, and the annually indexed table of the costs associated with raising children.

You can then use this knowledge to negotiate a private Child Support Agreement. Such an Agreement can be a “win-win” for both parties as:

• The paying parent knows exactly where they stand and is free to progress financially without worrying about the Child Support Agency meddling in their affairs.

• The receiving parent has certainty in knowing that regular payments will be made throughout the agreed period without worrying about the paying parent restructuring their income in order to pay less child support.

Parents can enter into a Child Support Agreement that is binding for up to three years without lawyers need to sign off on the Agreement. For an Agreement longer than three years, lawyers will need to sign off on it.

So, speak to your family lawyer about the pros and cons of entering into a private Child Support Agreement to establish whether this is a good idea for you in your particular circumstances.

Drafting Persuasive Affidavits

Drafting Persuasive Affidavits

Richard Mahler

Accredited Specialist – Family Law

Firm Principal – Mahler Family Law

A paper presented at the Inaugural Darling Downs Family Law Intensive held in Toowoomba, September 2008.

Introduction

Lawyers are trained in the art of using words (both spoken and written) to persuade others, in particular the Court, other lawyers and, at times, other parties to a dispute.  An Affidavit is a sworn statement of evidence and as such is one of a lawyer’s best tools in the art of persuasion.  A well drafted Affidavit not only provides the Court with a statement of relevant facts to be used as evidence in its decision-making process, but can also have the indirect effect of facilitating future communication and negotiation between the parties.  Therefore, the issued of drafting Affidavits has direct relevance to the theme of the Inaugural Darling Downs Family Law Intensive in Toowoomba, which is “building better working relationships to assist parents and others achieve better outcomes for children”.

The immediate benefit of drafting a persuasive Affidavit is that it is more likely that a favourable outcome from the Court will be achieved.  Conversely, a poorly drafted Affidavit containing irrelevant “low quality trash” (as I heard described by one senior Barrister at a recent Hearing) of baseless allegations, does not assist the Court and only serves to waste the Court’s time and resources (which never promotes a more favourable outcome for a party).

A significant secondary benefit is the effect that a persuasive Affidavit will have on the parties to the dispute.  Most Lawyers can recount stories of a clients pouring over and Affidavit prepared by the other party and becoming highly agitated, asking “how can they get away with telling the Court so many lies?”.  This scenario outlines the fact that Affidavits can impact upon the emotional wellbeing of parties, which in turn affects their willingness and ability to negotiate effectively and thus fully utilise the services of Alternative Dispute Resolution (“ADR”) providers.  As with the Court, inflammatory or “trash” comments do not aid negotiations but only serve to polarise the parties and thus reduce the overall effectiveness of the ADR process.

In this paper, I discuss various tactics that lawyers can incorporate in order to draft more persuasive Affidavits and thus have a greater potential to achieve better outcomes for their clients.

The rules of evidence

The rules of evidence are Common Law (judge-made) principles that have been developed for over a Century to ensure that the Court can adequately test any evidence brought to it.

Section 69ZT of the Family Law Act is, in my view, one of the most misunderstood points of family law.  The Section provides that the rules of evidence do not strictly apply to children’s cases.  However, the basis of its inclusion into the Act was to limit endless objections to evidence at the commencement of a Trial – not to give lawyers Carte Blanch to fill their clients’ Affidavits with groundless allegations.

Furthermore, many lawyers fail to recognise the importance of Subsection (2) which allows the Court to give no weight to evidence that would ordinarily be inadmissible under the rules of evidence.  It is therefore important for lawyers to challenge their clients in order to test the validity and relevance of alleged facts that are to form part of an Affidavit.  Therefore, the vast majority of evidence which fails to adhere to rules of evidence will not be given any weight by the Court and will simply slow down (and thus frustrate) the Court in its decision-making process and, ultimately, be far from persuasive.  I suggest that a relevant exception may be where there is a reasonable likelihood that a child is at serious and imminent risk of harm.

Relevance

It is hardly conducive to a property settlement negotiation or an ongoing workable parenting arrangement to reference trivial grievances or include fabricated events or crimes in an attempt to gain a more favourable outcome at Trial.  I have heard members of the bench dispel the myth that putting a “pink elephant” before the bench means that the seed has been planted in a judge’s mind, regardless of the legitimacy of such an allegation.  In fact, I have heard members of the bench indicate that all this does is aggravate the Court and place it on notice that the Affidavit may simply be full of rubbish.

Federal Magistrate Slack recently commented in his paper “Advocacy in the Federal Magistrates Court of Australia” that, “There is a duty [on lawyers] to exercise care by testing any instructions before making allegations of misconduct against anyone.”  Thus, we see that including such comments at the request of a highly emotive and possibly vengeful spouse without first testing the accuracy of such statements great prohibits the progression and speedy resolution of the matter.  Where there is an “Archilles heel” in the case, plead it clearly and concisely, as this then essentially disarms the other party from using it by surprise, and puts the Court on notice that it is unlikely that the deponent has any relevant “skeletons in the closet”.

In any event, an outcome that is fair and equitable for both parties and in each parties’ best interest is, in my experience, generally attained through joint negotiation and compromise on every detail rather than the decision by the Court taking a relatively “broad brush” approach, given the inherent limitations on time and resources.

Opinion

Affidavits that include speculation and the opinion of those not in a qualified position to provide such, are not relevant to litigation.  The Court is the one to make inferences from evidence and to reach conclusions as to the matters of fact and law.  It is not the place of the parties, or their lawyers, to draw conclusions or include legal submissions in Affidavit material.

Hearsay

There is one school of thought that says that at an Interim Hearing effectively “anything goes”, but that at a Trial the Affidavit material must be drafted mores strictly.  While opinions on this topic will vary, I find that in practice it is always best to adopt a common sense rather than strict approach.  Where information falls within the ambit of what can be reasonably imputed knowledge in all of the circumstances, then it can probably go in; otherwise, leave it out.  I have adopted the motto: “When in doubt, leave it out!”

Should baseless allegations founded upon hearsay be responded to?  It is true to say that any allegation that is not responded to may be deemed admission by the other party as to its authenticity.  This is probably why lawyers go to great lengths to respond to each and every allegation raised by the other party.  In my view, it is appropriate to succinctly respond to such allegations; however, parties should be counselled against falling into the trap of “fighting fire with fire” and descending into a mud-slinging contest that will not assist the Court one iota in its decision-making process.

Start Early

An Affidavit can be much more than a sworn statement provided to the Court.  When drafted at the commencement of the retainer, if can be used by lawyers to “proof” their client so that lawyers can ascertain the merits of the case and fully apprise themselves of the facts of the matter.  The more correct the details, the more chance of achieving a just outcome.  A draft Affidavit can also be a useful reference at a Conference or Mediation, as it should set out the chronology and facts of the matter and (in part) the Orders the party is seeking, which will ensure that negotiations are based on agreed facts and rational expectations rather than vengeful half-truths and demands concocted by the client in the heat of the moment.  Getting the facts of the matter correct also assists lawyers in providing proper advice to their client and managing realistic expectations.  Therefore, in my view, it is best practice that lawyers begin to develop a chronology at the initial client interview.

Preparing a rushed Affidavit, prepared just before a Court Hearing, can complicate the thinking process of a party.  In my experience, if the matter has been on foot for some time, my clients cannot always recall each specific event as clearly as they did at the commencement of the retainer, or cannot think quite as impartially once proceedings have commenced.  Thus, a tardily prepared Affidavit can result in a poor or inaccurate understanding of the matter and thus an unrealistic or unjust expectation by the client.  This can also necessitate undue stress upon the client and extra expense by way of extended and unnecessary communication in clarifying information, instructions and advice.

An additional benefit of preparing early is that it allows for appropriate time to be taken to ensure that the client understands the content and language used in the Affidavit and “owns” the document rather than hastily casting an eye over it prior to swearing to it.  This will save embarrassment for lawyers and their client in avoiding having the party being clearly unfamiliar with their own Affidavit when pressed under cross-examination, which obviously adversely affects the persuasiveness of their case.

Annexures

A common message that lawyers hear from the bench is to avoid “Trial by Annexure”.  The only material annexed to an Affidavit should be that which gives evidence in relation to the issues in dispute, and which cannot be adequately dealt with by disclosing the document to the other party.  The vast majority of correspondence between lawyers falls into the former category!

Section 131 of the Evidence Act 1995 (Cth) (“Evidence Act”) prohibits an Annexure from containing any document in connection with attempted negotiation for settlement purposes unless the document included a statement that stated it was not confidential, the other party has expressed or implied consent to the document’s inclusion, the document was created in relation to power abuse or illegal activity, the document can shed light on power abuse, illegal activity or misleading information, or if the document is relevant to the issue of costs.

One final tip for Annexures is to use colourful tabs to differentiate them (particularly if there are more than a couple of Annexures).  In short, draft an Affidavit from the perspective of the reader and make it as user-friendly as possible to navigate through the document.  Thus, write to the intended audience – the bench.

Run a positive argument

Lawyers have a duty to present any relevant facts to the Court in respect of improper conduct by a party.  However, they should remember that an allegation that cannot be substantiated by independent evidence generally only serves to inflame the other party, does nothing to further their client’s case and runs the risk of putting the Court offside.  In my experience, a persuasive case generally revolves around running a positive argument as to why a party should receive a certain property settlement entitlement or why the other party should receive a lesser property settlement entitlement or why a child should be kept away from the other party.

In children’s matters, the paramount consideration is what is in the child’s “best interests” as per Section 60CC of the Family Law Act 1975 (Cth) (“Family Law Act”).  To show the Court that a party does not view this as simply a “who’s the best parent?” contest, they should refrain from unhelpful “parent bashing” and instead include some positive aspects of the other party to illustrate to the Court that the party is not selfishly tunnel-visioned as to what is in a child’s best interest.  Preventing a child from living with a less-than-perfect parent is not necessarily in a child’s best interest and it would be best for a party to be supportive of a child’s relationship with the other party to the extent to which it is in the child’s best interests.  In essence, the merits of a party’s case must be established rather than simply pointing the finger of scorn at the other party.

Avoid humour like the plague

Another writing style I would caution against when preparing an Affidavit is the use of humour.  The medium is not befitting the context in which this document will be read.  It may even be inferred by the Court that the party is not taking their matter seriously.  I can only assume that some lawyers think that traces of light humour or joviality will make their material more memorable to a judicial officer who has read many an Affidavit before.

I would suggest that a well-worded and concise Affidavit can be recalled readily enough by the bench and would think this a more favourable circumstance that the bench recalling a party’s peculiar sense of humour (or lack of it) and perhaps inferring that the party has a lack of respect for the Court and/or the proceedings.

One further point, let Counsel put the final spin or twist on the case (and perhaps adopt a little humour).  Adding a touch of humour in an Affidavit runs the risk of taking some of the steam away from Counsel when addressing the bench.

Structure & Style

The Family Court of Australia and Federal Magistrates Court of Australia (collectively “Family Law Courts”) have limited resources to give each matter, and thus a well drafted Affidavit in its very style and structure should employ strategies to minimise the time spent in perusal in order to avoid frustrating the bench, thus, being as persuasive as possible.  It is also important to set out at the beginning of an Affidavit what the proceedings are about and what the deponent is seeking, so that all subsequent material can flow on from those two propositions in a logical and orderly fashion.

Length

The length of an Affidavit should reflect the level of complexity (or lack thereof) involved in the case.  Therefore, an Affidavit should only reference material that will highlight the issues in dispute and support the Orders Sought.  I have heard at least one member of the bench make the comment as to Affidavits that “short is good!”.

Paragraphs

The paragraphs used in an Affidavit should be numbered and in 1.5 paragraph spacing for ease of reference and sub-headings should be used to sum up the contents of each section and orient the reader in what can sometimes be quite a lengthy document.

Sentences

The sentences used in an Affidavit should be short and succinct, as extended waffling phrases and grandstanding dialect is not only irritating to the reader and confusing to the deponent, but it takes up more of the Court’s time and variably frustrate the bench.  A well-phrased, succinct paragraph will often do more to illustrate a point than multiple pages dwelling on the same topic.  However, using short and succinct sentences should not be used as an excuse to implement broad and nondescript statements such as “my husband was abusive”, “my wife did nothing” and “30:70% split”.  While opinion or inference should be included, the relevant facts should be fully fleshed out in all their specifics and not merely summarised.  Generalised comments are merely fodder for cross-examination.  The bench is then left to wonder whether other material in such an Affidavit is self-serving and exaggerated.

Words

The specific words used really matter.  A broad-brush approach is never appropriate.  Be sensitive to avoid unnecessarily offending the other party.  In children’s matter, avoid labels such as “resident parent” or “non-resident parent”.  Using the first names of parties to a dispute is generally better than phrases such as “Applicant Father” or “Respondent Mother” as these terms help keep parents somewhat connected in their ongoing parenting relationship.

I have been approached by numerous mediators, psychologists and counsellors over the years who have told me that they spend far too much time mopping up the mess caused by unfounded allegations contained in Affidavit material.  Lawyers generally only read an Affidavit once or twice in the context of the particular proceedings currently before the Court.  However, lawyers need to think twice before swearing up and filing an Affidavit, as they may unwittingly be sending of a time-bomb that will go off in the homes of parties who read and re-read the Affidavit material over and over again, stewing over every word contained therein.  This not only fails to convince the Courts, but polarises parties to a dispute and thus reduces the effectiveness of the ADR processes, which is hardly in a party’s best interests.

At the end of the day lawyers are problem solvers and should not be creating further problems for parties who already face a crisis situation in their lives ad need to be able to rely on an independent and objective professional who can guide them through these troubled waters to safe ground where they can move on with their lives.

Conclusion

An Affidavit should be a clear and concise statement of fact relevant to the issues in dispute.  It should be prepared early and be well structured.  It should be easy to understand and navigate through.  It should brief the Court fully on the specifics of the matter in such a way that it becomes a tool in assisting the Court in its decision-making process.

A persuasive Affidavit will assist the writer by apprising them of the matter, assist the deponent in resolving their matter without unnecessary litigation, aid the working relationship between the parties and with ADR practitioners, and alleviate the burden placed on the Court (thus resulting in lawyers being more persuasive advocates).

From these principles, I would suggest that the attached list of “Top Dos and Don’ts” are a ready reference to help lawyers maintain best practice in being both an effective advocate and also promoting ADR processes to provide the best outcomes possible for their clients.

Dos

Prepare early

Adhere to the rules of evidence

Be relevant

Be specific

Be succinct

Keep to the facts

Length indicative of complexity

Be upfront with weaknesses in the case

Be positive about the other party

Only annexure material in dispute

Don'ts

Avoid hearsay

No opinion

No summarising

No legal submissions

No speculation

No waffling

Avoid humour

Don't be dramatic and emotive

No lies

Don't draw conclusions

If you would like to obtain family law advice specific to your personal circumstances, please contact me on: richard.mahler@mahlerfamilylaw.com or (07) 4638 0811.

Best of luck in the journey that lies ahead.

Disclaimer:  This is an opinion piece, and is Family Law information, not to be taken as Family Law advice.

Please click this link for a PDF version of this document:

http://www.docstoc.com/docs/69361195/Drafting-Persuasive-Affidavits-Mahler-Family-Law

7 STEPS TO PREPARE FOR SEPARATION

by Richard Mahler (Family Lawyer & Accredited Family Law Specialist)

If you’re facing separation, prepare now so that you can be proactive rather than reactive.  Empower yourself to effectively respond to the changing relationship with your partner.  Below are 7 steps to be better prepared for separation.

Step 1 – Try relationship counselling first

You should do everything you can to be sure that separation is necessary.  While sometimes it is, it isn’t always the answer.  Part of this is relationship counselling.  Even if you and your partner have gone down this track before, you should be absolutely certain that there are irreconcilable differences between you.  Separated couples often find themselves in a ‘world of hurt’ after separation, emotionally and financially crippled.  If children are involved, your life will never be the same again as you and your separated partner will be parents together for the rest of your lives.  Yes, you read that part right; not just until the children are 18 - but for their graduations, marriages, children, etc.  Separation is not the ‘one-stop-shop’ to fixing relationship problems. Therefore, you should ensure you’ve given relationship counselling a real go.

Step 2 – Get a great personal counsellor

If you do ultimately separate, make sure you have a great counsellor for you personally.  Separation is usually a traumatic experience.  To compound the problem, you need to make some critical decisions that may affect you profoundly for the rest of your life.  This can at times be a toxic combination, where you’re making big decisions while not in a good frame of mind.  It’s therefore really important that you have support from a person trained in the social sciences to be able to help you.  A good counsellor or psychologist is an essential support for anyone going through separation.  You’ll then be much better equipped to deal with the thoughts and emotions that you may have as you navigate through this difficult time in your life.

It’s also a good idea that your counsellor be someone other than your relationship counsellor, to ensure they’re not in a conflict of interest situation where things have the potential to become uncomfortable and they can’t effectively work with you because of the confidential information they’ve received from your partner that they’re not at liberty to discuss (either directly or indirectly) with you.

Step 3 – Copy all of your financial documents and video your household contents

Wait for a time when you’re confident your partner won’t be returning to the house for the best part of a day (or if you don’t have that luxury, you may need to break this process down into bite-sized chunks).  Systematically go through every room of your house and video all of your assets (including small items hidden away, such as jewellery, etc) while detailing what you are filming.  Also include your cars, boats, motorbikes, etc. 

At the same time, take photos of all of the financial documents you can find.  Things to look out for include (but are not limited to): bank statements over the last 12 months, superannuation statements, tax returns, shareholder certificates, mortgage documents, Centrelink statements, and payslips.  This information is an invaluable resource in negotiating a property settlement down the track, particularly if your partner is not forthcoming with the necessary financial disclosure.  If you’re not sure if it’s relevant, copy it anyway.  It’s better to have too much information than not enough. 

You then need to keep this video and photo information in a safe place.  If it’s digital, then copy it onto a usb or disk and remove the originals from your camera or phone.  Place the usb or disk with a third party such as your family lawyer or a friend (don’t leave them in a “safe” place in the house or at work, as they may be found by someone you didn’t want to find them).

After separation, it can be really easy to forget exactly what assets you held at the time of separation, which can have large ramifications for your property settlement.  Even if you’re saying to yourself that you don’t care about that stuff and your partner can have it all, it can be a good ‘ace up your sleeve’ in terms of negotiating down the track for the things that do really matter to you.

Step 4 – Don’t move out of the house (yet)

It’s best that you do everything you can to stay in the home until you have obtained legal advice (see Step 7).  Moving out may prejudice you in terms of being the children’s primary carer.  Moving out may also prejudice you in terms of having to pay spousal maintenance (or being able to receive spousal maintenance).  Spousal maintenance is where one party pays the other party an amount of money each month to cover expenses such as mortgage payments, school fees etc.  Spousal maintenance normally continues until a final property settlement. 

Of course, if your partner becomes violent, then you should definitely do whatever is necessary to protect yourself and your children, even if that means moving out of the house.  If this is not the case, then one option is to separate while under the same roof.  Thus, you and partner could sleep in separate rooms and thus give effect to a separation without either party having to move out of the house in the short to medium term.

Step 5 – Put some cash aside and open a private bank account

Now is the best time for you put aside some cash for a rainy day.  You may not have access to these funds in the near future, so it’s a really good idea to get onto this straight away.  Otherwise, you may find that accounts have been closed or frozen before you’ve had a chance to get your own cash reserve in place.  If there are no cash savings in place, you should see whether you can get access to a drawdown on your mortgage, overdraft facility or a cash advance on a joint credit card.  The money may be needed to pay urgent bills, pay for accommodation at short notice, etc.

You should also open a private bank account.  While this will need to be disclosed to you separated partner at a later point, it will be highly useful in the short to medium term.  You can put your cash reserves in there, giving you the peace of mind that it won’t be lost, stolen, or withdrawn by your partner.

Step 6 – Get a title search of your property

Another important step is to obtain a title search of any property held by you or your partner.  This allows you to take the necessary steps to protect your property from being sold without your knowledge.  You can do this through your family lawyer (see Step 7) or by dealing directly with the Titles Office.  This way, you can ascertain what (if any) legal title you hold in the property.

If your name is on the title to any property, a title search will also tell you whether you hold the property in your sole name or jointly with your partner.  If you hold it jointly, the title search will also tell you whether you hold it as “joint tenants” or “tenants in common”.  This is an important distinction, for if you hold it as “joint tenants” you can arrange with your family lawyer to have the interest severed so that you hold it as “tenants in common”.  This means that if you should pass away before a property settlement, then your half interest in the property will become part of your estate as opposed to automatically transferring to your separated partner.

If you discover that your name is not on the title to any property, your partner can sell it from under you nose.  You can then became embroiled on a wild goose chase to try to get your rightful property settlement.  If you discover early that your name isn’t on the title to your property, you can discuss with your family lawyer a strategy to overcome this obstacle.  You may need a court order for an injunction to prevent your partner from dealing with the property without your knowledge, and ensuring the sale proceeds are put aside on behalf of both parties.

Step 7 – Get legal advice from a specialist family lawyer

It’s essential that if you’re contemplating separation, that you get some advice from a lawyer specialising in family law.  That way, you move forward, empowered by knowing your rights and responsibilities.

Ideally, the lawyer should be an Accredited Family Law Specialist.  You can contact the Law Society in your state to get a referral to some Accredited Family Law Specialists in your area.  Getting the right advice early is critical.  You may not even be convinced that separation will definitely occur, or that you want to retain a lawyer during the separation process, however being advised of how the law applies to your specific circumstances puts you in a much stronger position.  Also, you can prevent making strategic mistakes that may prejudice the outcome for you in terms of parenting arrangements or a property settlement.

While there will be many other matters to attend to during this time, by following these 7 steps you will be far better prepared for separation. 

If you would like to obtain family law advice specific to your personal circumstances, please contact me on: richard.mahler@mahlerfamilylaw.com or (07) 4638 0811.

Best of luck in the journey that lies ahead.

Disclaimer:  This is an opinion piece, and is Family Law information, not to be taken as Family Law advice.