Getting to Ex: Taking control of your divorce

By Dominique Grubisa

An intricate guide outlining the difficult steps and processes involved with a divorce.

• Language: English
• Publisher: Woodslane Press
• Release date: Jan 20, 2010
• ISBN: 9781921683732

Book preview

Material

PART 1

Property settlement

CHAPTER 1

Having the right mindset

Getting started

So it’s over, you need to move on, but there’s this huge mess that requires sorting out and clearing up. After all, this wasn’t just another short-term relationship where you can shake hands, tell each other to take care and then read the newspaper over a morning coffee! But it’s not just separating two lives and getting a divorce: your joint finances, your children and their future all have to be finalised.

This book is not to be taken as legal advice from me to you. I cannot know your particular circumstances, so it is not intended that you simply follow verbatim what is contained in these pages. What I aim to do is to educate you about the workings of the system, as well as to give you some tips and pointers which I believe will help you optimise the end result of your family law case.

Gaining knowledge of the system will give you an edge, while the tips and suggestions in this book should help to facilitate a resolution quickly and cheaply. You should, however, consider seeking advice from experts concerning issues relating specifically to your case. For example, you may wish to consult a lawyer, financial advisor or accountant to check on the implications of any proposed course of action.

First of all, this book is not for those who are hoping to reconcile or who want to avoid the finality of severing all matters family. If you think that taking a break and trying again is on the cards then you don’t need this book.

This book does not presume to counsel you or advise as to what is best emotionally for you or your family in the long term. To be perfectly honest, if you have bought this book wondering whether or not to go to war in the Family Court – the answer is probably a resounding NO. As you know, time is money; and while you can always make more money you can’t get back time wasted. Can you put a monetary value on the two years you lost eating, sleeping and breathing your family law case? In five years from now you’ll look back at this as a distant memory of a terrible time and that will be it, so it’s probably better to cut your losses and not pick over the past in the courtroom. They say of litigation that to win is to lose but to lose is disastrous – that is, even the winner doesn’t win, as a case takes its toll on all parties both financially and emotionally.

Having said all that, this book is for those who are already enmeshed in the process of dismantling their joint lives, having made a decision that there is no other way. Anyone reading this has accepted that the marriage is over and is ready to rip off the band-aid. It’s about the art of survival and ultimate victory in what seems like an overwhelmingly messy business.

So, here we are – you’ve burned your bridges and now it’s onward and upward!

Engaging a lawyer

What are you prepared to pay for?

By now you have probably already seen a lawyer and you may have been given a costs agreement. If you haven’t, fasten your seatbelt and expect something along the lines of:

We need $5,000 (or more!) in our trust account to start

"We can’t tell you our exact fees or give an estimate of fees if the matter went to a final hearing, but to read your papers and start court proceedings/file a response and brief counsel we will require $20,000. All costs will be charged at the following rates:

• Partner: $650/hour

• Senior Associate: $400/hour

• Junior: $250/hour

• Photocopying: $1/page etc.

• Counsel’s fees (to settle documents) $500/hour

• Court appearances for counsel: $2, 000/day."

We can tell you that on the information you have given us, it would seem that a court would award a 50/50 (or 60/40 – or whatever) division of property. However, we can’t guarantee that this would happen as it will depend on evidence from the other side, other unforeseen issues, the judge we get and any number of variables.

You get the idea! The irony is that while a lawyer is a great thing to have and while you may want to be able to afford the very best, their highest duty is to the court, and not to the one paying the bill! The system wouldn’t function if officers of the court went around lying to the judge if they felt it would help their client’s case or getting emotionally involved in every case they had. In fact you are paying a lawyer to be objective because you can’t be.

Looking out for number one

You may feel indignant about the above, thinking Don’t tell me I’m not thinking clearly! I know what I’m doing I’m just frustrated at the system/the world/life/my ex... You may feel like you need a buffer between yourself and the nastiness of the case. But beware of your saviour as they may not be the knight in shining armour that makes it all end happily ever after. They will hold your hand as your case goes through the system and they will do what needs to be done to present your case in the best light and in your best interests, but beyond that there is no magic wand. In the whole charade, after their duty to the court, who is second in line in terms of their duty? You, who is paying for the privilege? Unfortunately not! They will look after themselves second, and if you go down in the process you’ll be written off as a casualty of war and they’ll move on to the next case tomorrow. No blame, no fault, no responsibility – they will simply say Oh well, the judge didn’t see it our way but that’s the risk with a hearing – we did tell you that. You could always appeal but to do that we’ll need $20,000 on trust for counsel... And so it goes on.

Now don’t get me wrong. All this is just the system: lawyers are just doing their job within it. All the while you remain caught up in this system your chances of a commercially viable outcome keep reducing. It will be expensive and frustrating and everyone, including your lawyer, needs to look out for themselves.

Now, to be fair to your lawyer, just for a minute, step in to his or her shoes. You do this every day and here comes another client. He or she tells you that the husband has offered 50% of all assets. This seems fair but upon questioning the client it turns out they don’t really know if this is everything, or even how much their spouse is earning. On the facts the amount in dispute seems small and it’s probably best not to have it all eaten up in fees. They should probably just settle, but what if the spouse is lying and has other assets? You could advise them to settle quickly in what seems to be their best interests, only to have them come back three years later and sue you because had you run a case and charged $200,000 in fees, they might have been entitled to an extra $1million.

So you see, in order to protect themselves lawyers have to dot their i’s and cross their t’s and this may end up costing you. That’s the system. So know your enemy – forewarned is forearmed. You need to be informed and make the decisions yourself. If you think there may be other property hidden away that your ex is not telling you about, or there are some complex issues involved in your case, then it may be worth your while to take the matter further with a lawyer. However, if you are sure of what you’re doing you can spend your money as and when you need a lawyer and not on a full blown battle.

Calling the shots

The other problem with a lawyer is that you may feel that you are paying them to sort out everything for you and achieve an optimum result. This may occur – for a price – but it may not! Unfortunately, you don’t know what you don’t know, and you are trusting someone else, an expert in the form of a lawyer or a judge, to do and decide what’s best for you and your family. But information and knowledge are power. You really need to be in control of your case, not just consulted when the lawyers want something rubber-stamped or need instructions confirmed so there’s no chance you will sue them later. They need to take instructions from you and for you to give instructions as to what you want, or even to ask the right questions, you have to know what’s going on.

You may be thinking How is that possible?. You wouldn’t want to be directing a surgeon operating on your heart, so how can you run your own case and head up your own legal team? You’re not qualified and you don’t know what’s going on!

Wrong! You are the best and in fact the only person to do what’s right for you, so you need to take the reins. You don’t need to perform the surgery or argue the case in court, but you need to be the general in charge directing the troops in the battle.

It’s a bit like a business. You need a computer system. You could spend a year studying computers and set it up yourself, or you could gain some general knowledge of the sort of system you want and get a guy in to install it for you. He’s employed for his expertise to save you time and money in the long run – because time is money – but you are not going to open your office and hand your business over to him while you tour the world!

The same goes with your family law matter. You need to devise the strategy and direct your lawyers as to how to run things. This will save you a lot of time and even more money.

Henry