Marriage looking rocky, scared of what might lie ahead if the worst comes to the worst? There already? In this edition the gorgeous Raymond Tan answers your legal questions on divorce…
1 What is the first step I should take in getting legal help?
All lawyers charge on a time basis. The most expensive part of getting legal help is sitting with your lawyer and telling your lawyer your problem. Inevitably clients are emotional and a recital of the facts to the lawyer may take two hours while interspersed with emotion, when it should perhaps take only one hour. So it is best for the client to sit down and write down a summary of the facts and then their questions. That will save the client time and money when they see their lawyer.
2 How do I choose between all the available firms and lawyers?
The first question is finding a lawyer with the right expertise. For example, some law firms specialise in personal injury matters and do very little family law work. So if you have a family law problem you should not try and get help from a lawyer who just does personal injury work. Ask the lawyer if they have sufficient experience in the field you are concerned with.
The second question is finding a lawyer you are comfortable with. I have often had clients change their lawyers because they felt their lawyer was not listening to them. The lawyer’s job is to listen and to advise in an impartial manner.
3 What are the alternatives in settling?
It is always expensive to fight a matter in court. The legal system now promotes mediation as an alternative way of resolving disputes. In fact in all the court systems the court requires the parties to go through formal conferences presided over by court-appointed officers. Their job is to try and get the parties to negotiate a settlement instead of the parties appearing before a judge at a trial. Mediation will usually result in a ‘win-win’ situation. If a judge has to decide a case, there is inevitably a winner and a loser.
4 Is property settlement influenced by one person leaving the home first?
It is not surprising that this is one of the most commonly asked questions. The simple answer is NO.
However there may be circumstances where one party may seek to have ‘exclusive possession’ of the family home pending the finalisation of the property settlement action. In such a circumstance the fact that you have left the matrimonial home may impact on any request for the court to allow you to have exclusive possession of the matrimonial home pending final resolution of the case.
However, leaving the matrimonial home first will not impact on how the family assets are distributed.
5 What information do I need to take to my lawyer?
It depends on what the case is about. In family law property matters, all financial information regarding your assets will of course help your lawyer.
The best thing to do is to ask the lawyer to give you a list of documents that you should bring before your appointment.
6 What is the approximate total cost for a family law case?
There have been cases reported where the parties have spent more than $200,000 in fees before the matter has even been to court before a trial judge.
In the majority of cases, the parties should be able to settle their matter within a fee range of $2000 to $5000.
Clients do have to bear in mind that if there are land or houses involved and there is a court order, then any transfer of the land or houses will only require nominal stamp duty. Nominal stamp duty is $20 compared to stamp duty for transfers based on value, which could be approximately $6200 for a $200,000 property.
7 How long on average does the whole process take for a family law matter?
This again depends on how divisive the parties are. Matters can be settled within a week if the parties consent and sign what we call a form 11 consent order.
Other matters where the parties are fighting tooth and nail for the salt and pepper shaker may take a couple of years or more. Hence it is important that you find a lawyer who will protect your interest and give you impartial and practical advice. Unfortunately some lawyers are known to feed on your anger and emotion so as to increase their fees.
In the words of a lawyer colleague of mine, “You need the lawyer to be detached. You may be in an emotional swamp and up to your neck with crocodiles. The lawyer should be sitting on the riverbank. He should be seeing the problem and helping you to make the right choices.”
8 How do I get support from my ex in the interim between leaving and settling?
The family court system allows a spouse to file ‘an application within a case’ if there is a need for financial support from a spouse after separation. You need to show that there is a financial need to support yourself and that you are unable to access the financial support anywhere else. You also have to show that your spouse has the capacity to pay for that support. Such applications can be filed as soon as the parties are separated.
9 How long does a couple need to be separated before a divorce can be issued?
The court requires the parties to be separated for 12 months before they will grant a divorce.
10 My spouse is having an affair. Is that going to mean that I am entitled to more of the family assets?
The Family Court system works on a ‘no-blame basis’. That means even if your spouse has been a ‘cheating lying bastard’ it does not impact on how the assets are distributed.
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