Separation doesn't have to be nasty
There's a new buzzword in divvying up the assets after a relationship ends: collaborative separation.
The popular image of couples dividing relationship property is one of antagonism and conflict, with former partners fighting it out through highly priced lawyers to get as much as they can for themselves, and to withhold as much as they can from their former loved ones.
But Auckland family law specialist Selina-Jane Trigg from Family Law Results said it doesn't have to be that way, and a legal movement imported from the US is about to raise its head here in New Zealand.
Largely unnoticed, some family lawyers in New Zealand have been getting trained in what is termed the collaborative approach to separation, and Trigg is the founder chair of Collaborative Advocacy New Zealand, which is about to launch onto the family law landscape.
Trigg has been finalising the contents of the soon-to-be-unveiled website of the fledgling society, introducing collaborative divorce, as it is known in the US, to New Zealand.
Exponents believe the approach could save separating couples a packet in legal fees and a lot of heartache.
Trigg said the collaborative approach is about the splitting couple working together with their specially trained lawyers to come to a binding agreement through a series of collaborative meetings, and it's not always just lawyers. Neutral financial professionals like accountants and financial advisers can become involved where assets like property and businesses need valuing, for example.
Splitting couples committing to a collaborative separation don't enter the process lightly.
They are working towards legal settlements splitting relationship property, and must sign contracts pledging their honesty and that they will not head to court to resolve the dispute.
Both sign a legally binding agreement to provide full information in an open and transparent way.
Material written by Trigg for the planned website warned: "If you reach agreement using collaborative practice and later discover the other party has not disclosed relevant information, then the situation is no different from any other negotiated agreement reached using other dispute resolution processes. If the information would've altered the outcome of the agreement, it would be open to you to seek to overturn the agreement."
If the collaborative process falls down, the lawyers are barred from representing their clients in any subsequent court action. It's a cornerstone of the concept so that both parties feel able to speak freely and not fear their words and revelations could later be used against them.
Trigg said there were a number of potential benefits to collaborative separation.
The original inspiration behind it was to limit the emotional damage traditional approaches to separation and divorce can produce, especially to children, by providing a process which dials down the antagonism and gives respect to emotions.
But there are other, more practical benefits including speed and efficiency. The collaborative approach can sometimes take a matter of weeks compared to months of delays, and perhaps even years, once a court process begins.
"You don't have the time delays that can occur when lawyers simply try to resolve matters by exchanging letters," Trigg said.
"Conventional litigation often involves a number of court appearances which can be delayed by any backlogs the court may experience."
The couples set the pace and timing of the process, she said, rather than having it dictated by the court. That can save a lot of money as well but the greater driver was to arrive at separations which are a lot less damaging to the relationships between the participants, and can provide a platform for families, especially those with children, to chart a future where they can work together.
Collaborative separations have happened here, said Trigg, but without any public profile, something the growing number of practitioners hope will soon start to change.
The collaborative approach adds to the options available to splitting couples.
They can reach an agreement between themselves and get their lawyers to formalise it. Another common method is to negotiate through their lawyers, a process always backed by the implicit threat of an application to the court.
There has been a rise in the number of separating couples seeking agreements through mediation in the past decade.
PROTECTING WHAT'S YOURS IN A SEPARATION
Splitting the family assets upon divorce is no simple task, especially if emotions get the upper hand. Divorcees and lawyers share their wisdom.
It's always about the money: It may not seem so at the start, one divorcee told the Sunday Star-Times, but at some point, the hard, cold financial reality asserts itself, and so does greed.
Stay level-headed, especially if you are a man: Divorcee Danny de Hek, who now runs the separation.co.nz website, said losing your cool, and allowing things to descend into acrimony is a mistake, and it can be more so for the man than for the woman. Men, he said, are susceptible to false claims of abuse, or threatening behaviour which can be hard to counter.
Get a specialist family lawyer: But remember, the lawyers are there for you, said de Hek. Don't let them inflame the situation, or turn it adversarial. You make the decisions.
Know your rights, and options: A lawyer will help you understand your legal rights, and should outline options. These include amicable separation agreements, a lawyer-negotiated settlement, mediation, and finally, court.
Be prepared to compromise: The process should not be about destroying each other and not giving an inch. People battle over the silliest things, making the important things even harder to reach agreement on. De Hek witnessed one couple fight over who got a statue they had bought together on holiday.
Pre-plan, if you see it coming: Selina-Jane Trigg, director of Family Law Results, advocates pre-planning. It is especially important for a person who does not know much about the family finances.
"Unless you have to leave in a hurry, take some time to get knowledgeable about the finances of you and your spouse," she said. "You may have been the one in control of the finances in your relationship but if you weren't, get copies of all your financial records. These may include bank statements, loan agreements, trust deeds and resolutions, credit card statements, business financial statements, life assurance and superannuation documents."
It can save a lot of time, and cost later, she said, and avoid the "tortuous dance" with a former partner who wants to delay matters or is trying to hide assets.
Consider joint account, credit facilities: Seek to stabilise the finances. Talk to the bank immediately. Joint accounts can be emptied, joint credit card balances run up rapidly.
Never take advice from your ex: Trigg said: "If only I had a dollar for every time a client has wailed to me ‘My ex tells me I'm going to get nothing' or ‘My ex tells me the judge will see me for what I am and take the kids from me'. At best, she said, such comments are likely to be misguided and at worst, plain old bullying or abusive.
Understand the legal costs: Trigg recommended asking for regular invoices and estimates. See if your lawyer will complete the work for a fixed fee. Ask your lawyer if there are things you can do that will save on costs.
Pour energy into work: You're poorer as a single person, than as half of a couple. Work provides a means to address that and to soak up some of that energy.
De Hek said: "Rededicate yourself to performing at your best. If you can throw yourself into your work, you have another outlet through which your hard work can bear visible fruit. It's a good distraction overall, one that can afford you many opportunities to feel proud of yourself."
- Sunday Star Times