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Home | Q & A on 2GB about family law 14 February 2017

What to do if you want a divorce

Tuesday, 14 February 2017 

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CS – Chris Smith/CP – Catherine Parks /C1,2,3, etc – Callers 

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CS       Alright this is an ideal opportunity for you to get some free legal advice, we do this on a Tuesday afternoon on the program. 131 873 is the telephone number but get in first because quite often I don’t get to several callers at the end of the segment because you just get in a little bit late and when you’re at the end of the queue you sometimes don’t get served. Valentine’s day, all about love and romance as we know however for some couples it can be a day of reassessing relationships and determining if the love is still there or even worse if there’s any future in the relationship at all which is why divorce often appears to be the only option but when you made the tough decision to divorce how do you begin, how do you go about it. Do you try and solve it all yourself? Do you go through lawyers? Do you try and find a way to keep out of Court? Is it better to take it to Court? Well we might get some answers on some of these legal questions and answer your questions as well. Thanks to Turner Freeman Lawyers and their legal matters segment, I’ve got a $100 Westfield’s voucher to give away as well, we’ll catch up with a caller between now and the top of the hour who’ll win the $100 Westfield voucher and look Turner

Turner Freeman Lawyers provide a range of specialised legal services including  compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law Wills and estate and property law. They’ve got New South Wales offices in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong. They also have offices in South Australia, Western Australia and Queensland. If you’ve got a legal question give us a call 131 873. Catherine Parks is an accredited specialist in family law, she’s based in Parramatta but also sees clients in the Sydney, Campbelltown and Penrith offices and she’s in the studio right now.

Catherine thank you very much for coming in.

CP      Thank you.

CS       Alright, what is the first step? If you have decided yourself to suggest that you and your former loved one should have a divorce and maybe it’s something that you both agreed on or maybe it’s something that you want and he or she does not, what’s the first step to do. Is it as simple as simply going to a lawyer or is there another path?

CP      Look going to a lawyer can often help, a lot of what lawyers do is not about running Court cases it’s about assisting people with mediation, giving them information about their rights so that they can negotiate as between themselves. When it comes to children which is probably the thing that concerns most people and is the most urgent when parties separate, there’s an obligation that you have to mediate, so the government runs family relationship centres which are free organisations that you can attend, there’s private mediation, there’s a whole lot of informal mediations that people do across the kitchen table.

CS       So this is not a mediation to put the relationship back together.

CP      No.

CS       This is a mediation to work out who should have custody of the children and whose going to look after them.

CP      That’s right, so it’s different to marriage counselling which is to keep the relationship together. There’s also therapy that a lot of my clients tend to do now which is family therapy. You go and see a counsellor, not to put the relationship back together but to work out how can you best parent, how can you learn to communicate as best you can as a separated couple, it’s a totally different landscape.

CS       How do you as a lawyer then get past all the emotion because having been through this experience you can get terribly emotional.

CP      Yes.

CS       On every aspect.

CP      Every aspect.

CS       Any discussion that goes on between a partner and sometimes you’re coming into the office to talk to the lawyer and you are at your wits end.

CP      Yeah. Look it’s really difficult, there’s no easy answer to it, it’s about managing the expectations of what you can do and my big thing nowadays is…

CS       So deal with the things you can change.

CP      Yeah.

CS       Given some direction as opposed to worrying about things that is completely out of your hands.

CP      Or knowing that when you go to a lawyer it’s about getting the legal advice, you might need a therapist to help you with some of the emotional impact and the fallout, you might need an accountant to give you information about some of the details of your assets particularly if you are in businesses, it’s about using the right professional to do the right thing and all coordinating together to try and reach a settlement. There is nothing worse than going to Court. It’s three years.

CS       Three years?

CP      Three. It’s between $70,000.00 and $100,000.00.

CS       So is that because of the line up of cases that need to be seen or dealt with in the Family Court?

CP      Absolutely, there’s just not enough Judges, Judges are not being replaced. The system is in quite significant crises.

CS       And if you are meeting lawyers on a regular basis and putting together everything that needs to be put together and preparing for a case what it’s going to cost you to go to Court and go through the case for three years?

CP      Look it’s one of those how long is a piece of string to be honest but the reality of what we say is you’re not generally getting out of a Court hearing between $50,000.00 and $70,000.00. Which is a lot of money if you can use that to set the kids up in a nice house so that’s you’ve got two properties, anything that you can do to avoid going through the process is useful and my experience is increasingly that if you can start positively at the beginning, you know you can make sure that you go and see a lawyer early to give you direction about what you need to do. Go and talk to your accountant about your finances, understand what they are. What are we dividing up? Go and talk to a mediator about the kids, you know 50/50 might sound fair but that might not be in the best interest of the children.

CS       And it might not necessarily be practical either.

CP      It might not be practical.

CS       What about a woman in a relationship, maybe she hasn’t worked for a while so therefore she is using you know her husband’s finances or revenue or income to get about her business during the day and so when all of a sudden a divorce is mooted and they have a row and they separate etc and he cuts off all sources of money, how does she survive?

CP      Well that’s one of those areas where you have to get into Court quickly. I mean you can try and mediate but what the Court can do is it can order spousal maintenance it can order some lump sum payments, that’s a very difficult situation and the difficulty of the Court delays mean that there are many women who are financially dependent on their husband’s who are suddenly cut off and they are still looking after the kids for a majority of time.

CS       And so the Court can rule that he needs to supply a particular amount of money for her to survive.

CP      Yes. They can order the sale of a house…

CS       You’ve got to do that quickly because after three days where do you stand? With nothing.

CP      Absolutely and look child support of course is an entitlement that’s run through the Child Support Agency and they do a fabulous job but it’s a government organisation that does take some time to get the wheels rolling and make sure that they’re doing the right thing but time is of the essence.

CS       The other thing that couples would probably face is the fact that there moight be the odd investment or asset that could be sitting in another state etc and the decision then has to be made is that all dissolved and whatever’s left is it divided up.

CP      Yep.

CS       How’s it divided up? Does an asset and maybe a debt on that asset, does that go with a particular side of the marriage

CP      Yes.

CS       The husband or the wife and should they accept that because at the end of the day sometimes you know divorces aren’t timed quite well with the property market and all of a sudden you’re dissolving the assets that could be worth a lot more in three years time.

CP      Well that’s right and that’s again…

CS       So my question is should you be not only talking to your lawyer about this stuff but talking and liaising with a financial adviser as well.

CP      Absolutely and one of the bid things that we deal with a lot is, say you have an investment property, it may be worth half a million dollars but you might have bought it ten years ago for $250,000. Taking that asset is also taking the capital gains tax complications that attach to that property so there is a lot of complication around working it out.

CS       It might be in your best interest to pass that asset onto a partner who can make more money and afford to pay it off.

CP      That’s right.

CS       Rather than saying, oh I want my share, thank you.

CP      Absolutely.

CS       Alright. Tim go right ahead.

Caller No: 1      Tim

Tim     Yeah, hi, I just had a question regarding sort of when is a reasonable time or expectation for someone to be excepted to for them to go and have a job, like in my situation, separation I work fulltime, I have kids exactly 50% of the time, my ex partner works two short days, very, very short days a week, the kids are all in school, so when’s the expectation that they really need to go and start working fulltime as well.

CP      Um… Tim there’s nothing in the law that says that your ex partner has to start working at any level, at any time. I assume that what you’re saying is that one of the big things about child support is that her income is one of the factors that gets taken into account when determining how much you have to pay.

Tim     That’s right, I mean and it’s sort of.. .this is not a….I mean we’ve got an amicable, kind of when it comes to an agreement or that sort of stuff but sort of over time things go on, I’d of course want to provide for my kids but I shouldn’t necessarily need to maintain a life style for her over a time as well you know what I mean.

CP      Yeah, I do and I think that’s one of the really difficult areas. There’s no legislation about it, there’s nothing that says that any time she has to start working.

Tim     Very strange….you know….

CS       Are you suggesting Tim, as I’m sensing that you don’t think that’s fair.

Tim     No, not at all. I mean I think if umm…you know like I said we have an amicable kind of relationship so forth but if I work fulltime I have the kids exactly half the time so why isn’t there an expectation you know when her kids are at school or whatever that they have don’t have to work either. I mean that to me seems ….

CS       It doesn’t seem quite fair.

CP      It doesn’t and it, look the Child Support Agency effectively have a calculator and into that you spit a couple of details. One is your income, one is the other party’s income, the other is how many nights the children spend with each party, and a number pops out. It’s not perfect, it’s quite cumbersome but and that’s right it doesn’t take into account earning, could the other party be working more, could they be earning more, it just comes up with a number based on facts so it is difficult.

CS       Okay, alright, we’ve got some more calls. We’ll get to those right after a quick break. We’re seven minutes to news time and courtesy of Turner Freeman we’re talking family law. Tony, Catherine is listening go ahead.

Caller No: 2      Tony

Tony   Hi Catherine, hi Chris. Look I’ll try and keep this really short. I was in a de facto relationship for about 16 years, 2 kids out of that relationship. I ended up losing everything because my partner didn’t want to contribute, now she inherited a house during our relationship from her father and she hid the money to her mother as a loan and

CS       As a gift.

Tony   As a gift and in her Will it says I repay all my money back to my daughter that she loaned me. Now I’m left with nothing, working two jobs and looking after one of the kids. Where do I stand in that?

CS       Interesting one.

CP      Umm…look inheritances in the normal course get credited to whoever parents they came from but they still form part of the asset pool. Are you saying that there was some loans sort of make believe loans effectively that meant that the asset pool was zero.

Tony   Exactly, yes. She loaned all the money to her mother and see I was struggling to pay the mortgage, she wasn’t working and with that money we could have lived comfortably.

CP      Right.

Tony   But umm…she has given everything to her mother and she gets it back when her mother dies.

CP      Look there is room within, probably not in a mediation but within a Court system there’s definitely room to have a look at that and one of the things will be whether they’re bona fide the loans and that would mean a Judge having a look at whether it was really going to be paid back, the terms of the loan, the documentation, that would require cross examination and the difficulty unfortunately that a lot of people get into in family law property matters is you’ve got to sort of do a commercial consideration about whether it’s worth putting money and time into a running a case to get any money back and I don’t know what much money you’re talking about but I think that’s always the difficulty but there are vehicles through the Court system.

CS       And there may be, it may be worth asking questions because as I understand it for the tax department and Centrelink anything over $10,000 over a year period given as a gift needs to be taxed.

CP      That’s right.

CS       So that could be interesting. I’ll tell you what I’m going to do Dave, I can’t give you the house back but I can get you $100.00, a Westfield voucher..

Tony   Tony.

CS       Tony is it, courtesy of Westfield and Turner Freeman, how’s that?

Tony   Yeah, that’s brilliant now just one other thing, it was….

CS       Tony I can’t do it I’ve only got about 15 seconds left in the series but listen let’s get, see if we can get Tony to catch up with Catherine just after the segment and do something about that. Catherine thank you very much for your time today.

CP      Thank you.

CS       Some good callers, some interesting, interesting scenarios and we’ll have family law back on as part of this segment once again soon.

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