It may seem counter-intuitive to see a lawyer about your separation before you have even separated, but it can be extremely beneficial in the long run.
If you have made the decision to separate but don’t know where to start, or know of someone who has made the decision and needs advice, now is likely to be the best time to engage a lawyer for the following reasons:
1. Save on costs
By getting advice before separating, you will be better prepared and may find that your costs (both legal and personal) will be lower in the long-term.
In preparing for separation, there are a range of things to consider — such as, knowing what documents are relevant and having them readily available, who should remain in the property, and the ways in which parties can communicate that will prevent an escalation of the conflict — that can have an impact on the overall costs you incur.
2. Sort out living arrangements
Should you leave or remain in the house? There are many different circumstances that may impact whether you or your partner should leave the property.
Too often, and while easily avoidable, people going through separation find themselves in the following situations:
- Those who have left the matrimonial property when it is not financially viable and struggling to make ends meet prior to a property settlement which is happening at a slower pace than they anticipated.
- The children have moved with the parent who left the house but may have to move again when a property settlement comes through, creating instability and uncertainty for the children.
- One party has remained in the house and is now unmotivated to progress their property settlement as it will result in them either having to refinance for more money or sell the property. As a result, that party drags out negotiations (either wittingly or unwittingly) to the other party’s disadvantage.
- Neither party wanted to leave the matrimonial property so both parties remain living under the same roof in a stressful and uncomfortable environment. The opportunity to have the other party move may have passed.
- One party has left the home quickly, leaving furniture and personal belongings behind. The other party has then changed the locks. The parties are then unable to agree on who should keep what items and they are forced to involve their lawyers in negotiating these items.
3. Make arrangements for children
If there are children involved, it is the most critical of all considerations to have a plan worked out in advance for where the children will live and when they will see each parent in order to minimise the impact of the separation on the children.
Determining what arrangement will work best for the children depends on a number of different variables including the child’s age, the historical arrangements, the location of the parents’ new residences and numerous other factors.
Parents often overcompensate or unnecessarily restrict the children’s time with the other parent, which can potentially be detrimental to the children and have ongoing implications.
4. Protect assets from being disposed of
While some assets may be dissipated very easily, others can be hard to value without proper evidence.
Gathering relevant financial information and taking appropriate chattels from the property prior to separation can also help keep legal fees down later by reducing the areas of dispute.
5. Get the timing right
Is now a good time to separate from your partner or should you wait? While a lawyer can’t decide whether or not you should separate from your partner, they can however give advice about other factors that may play into the timing of your decision to separate.
6. Choose the right process
Based on individual circumstances ― such as, the amicability of the current relationship, any issues of urgency, domestic violence, the value of the property pool and the complexity of the matter ― there are a number of different processes that can be utilised in family law matters, including collaborative law, mediation, negotiation or court.
Determining the right path early on will minimise any adverse outcomes such as delays, additional cost, or the unnecessary escalation of conflict, and optimise the result.
While there is no hard and fast ‘right’ way to separate, there is however a way that will work best for you and your circumstances.
By seeing a lawyer prior to separation, you will be better equipped in dealing with your circumstances and navigating the difficult decisions around your separation.
For more information, or advice on the separation and divorce process, please contact a member of our Family Law team on (03) 8600 8888.
This Family Law update was authored by Emmalaura Messer, Senior Associate and Collaborative Lawyer.
Note: This update is a guide only and is not intended to constitute legal advice.