Do the Family Court Judges or the Law have all the answers in your Divorce?

If you are separating, you need to read this.

If you’ve already finished your Divorce and settlement proceedings, you already know the answer. And the answer is “No”.

There are lots of questions you might ask me about separation, and it may surprise you to hear that many of your questions have no answer, or not one set down by the law. It can be frustrating to hear from a lawyer that the answer to your question is “it depends”, “maybe”, “you could argue that”, “there are no formulas for that”, “it’s unlikely”, “it’s likely”, “based on what we know”, “there are a number of factors”, etc, etc.

I’m not a lawyer who’s afraid to give strong advice, but I’m also not a lawyer who is going to set up unrealistic expectations about Australian Family Law being a game of certainties. I’m aware that as a client, you might feel disappointed to hear “waffly” answers to your questions. After all, it takes a lot of courage to finally get to a lawyer to ask advice. True?

All lawyers are very aware that their clients would prefer answers immediately. Sometimes that is possible and sometimes it simply is not. Sometimes you and your lawyer are going to have to hang out in the “waffle zone” or the “grey zone” for a while at least. And there is a danger for you in not understanding the reality of the grey zone.

Danger, Danger

Don’t insist that your lawyer tells you “the answer” in meeting number 1 because they might just do so. And this is Dangerous because…….?

  • Your lawyer is probably like the rest of the human race, and would rather like to be liked.
  • All lawyers want to look competent.
  • Lawyers sell advice; you will have paid a lot of money for your meeting and your lawyer is mindful of that.
  • The more insistent and persuasive you are, the easier it is for your (human) lawyer to believe that your version is “the” story.
  • Your lawyer might have to spend the next number of months or years stepping down from too-early advice, which is rarely more than an opinion anyway.
  • There is another story out there, and it belongs to your ex.
  • There is another lawyer out there, and you simply have no idea how they are going to behave.

All of the above factors run the risk of you being told what you want to hear, rather than what you need to hear, which is that there are not many areas of Australian Family Law where you can hold onto your “non-negotiables”.

The Five A’s for Avoiding the Danger Zone

  • Approach your legal settlement knowing that it will be an evolution more than a revolution.
  • Appreciate that your personality, your ex’s personality, and your unique dynamic together, is going to play out in your separation, just as it did in your relationship.
  • Ask your ex who their lawyer is, or what kind of lawyer they are looking for, and tell your own lawyer about that conversation early on.
  • Accept that if you start out insisting on black and white answers, you are still going to have to get through the “grey zone” and you might never move out of it unless you make your own decisions and compromises.
  • Abandon the idea that your negotiation will be quick and decisive.

How do my Ex and I find out “The Answer” in our case?

  • Well, one way is to go to Court, spend years and hundreds of thousands of dollars to see what a Judge thinks. That would be one answer.
  • Or you could head off to two separate lawyers and they could give you their opinion about your case, and then they could spend months or years and at least tens of thousands of dollars arguing about which lawyer is right. Until one of you caves in. That would be another answer.
  • Better than either of these ideas, is for you to regard your situation as one that needs to be resolved, sensibly and amicably, and take charge of that early on. Think about your first conversations being with a psychologist or financial planner. Search out collaborative practitioners and mediators, because in their negotiations, there are clear rules of the game.
  • Know that family law in Australia is based on the Family Law Act, and on the cases that have been decided in the last 40 years. Also know that most people who end up going through a final trial are highly conflicted, rather than having a case that is highly complex, and family law advice is based on decisions made about people who are bound to have more troublesome personality aspects than most of us.
  • The advice of family lawyers is based on their personal experience of the system and decisions in the cases of the troubled few who go to final trial, about 2% of people. Ask yourself if you want to model your own settlement and your own future on that kind of advice.

What is the danger of insisting that your Lawyer ever tells you “the answer”?

This one is easy. Just don’t. It’s your life. Only you and your ex have “the answer” or “the answers”.

Marguerite Picard
A mediator and collaborative lawyer with some of the answers.

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