Winning a divorce case in NSW is not easy, especially when there is deep embedded conflict between the two parties. Ideally, both parties can agree on a settlement amicably, but of course this isn’t always possible.
If you foresee conflict in resolving a divorce, then it is important to formulate a strategy for working through separation. Despite the relationship breakdown, you will still need to make many joint decisions to achieve final separation.
Therefore there are many actions that you should not take. Often these will end in a worse outcome, wasted energy, and further hostility.
If you are going through a divorce, or are contemplating in starting one, read though our Divorce Tips.
1. Keeping sane
The process of resolving parenting, property and financial issues at the end of a relationship can be a very stressful experience – whether you achieve the resolution by private negotiation, family dispute or litigation. There is, firstly the discomfort of a (perhaps non-private) discussion of highly sensitive personal issues, and the stress of trying to address those issues unemotionally. Second, parties on both sides are often still trying to come to terms with major and grievously unhappy changes in their life circumstances. They may not be in the best possible frame of mind for dealing with a dispute.
If you become over-stressed you are in danger, at the very least, of making poor decisions in settlement negotations.
So it’s important to plan seriously to take care of yourself. You will need a regular exercise regime, and someone outside the process – a professional or a friend – to talk to about what’s happening. You need to try to maintain a life outside your family law issues. Eating, talking and constantly thinking about them will lead to poor decisions and poor outcomes.
2. Try and avoid litigation
There are many different strategies available to separating couples seeking settlement of their property, parenting and finance issues. These include private negotiation (face to face, by telephone or by correspondence); a specialised form of mediation known as family dispute resolution; join counselling; negotiation assisted by lawyers; arbitration; and legal action (with self-representation, or legally-aided or privately funded representation).
All of these options are open to some people. The more expensive ones are not open to many. But decades of experience in the family law system have convinced community services workers, counsellors, the courts themselves and many lawyers that court action is not the most effective way – for anyone – to resolve a dispute about property, money or, especially, about parenting.
Australian society is changing. More and more people are agreeing to work privately together to resolve their disputes more than ever before, and the trend is confirmed and encouraged by government policy. The Australian family law system requires parties to make a genuine attempt to resolve their disputes without a court decision, and provide processes and structures within the system to help them achieve this.
3. Good Behaviour
The stress of relationship breakdown and conflict over important matters leads many of us to exhibit our least appealing character traits. Despite reforms to the system, the process of separation continues to be a fertile breeding ground for abuse, over dramatisation, lies, violence, irresponsible behaviour and substance abuse.
Unfortunately, this is a time when you can ill-afford to lose control. You must try to ensure that your language and behaviour is the presence of your children and your former partner remain moderate and proper at all times – in private and in public situations. Take particular care not to denigrate (criticise or tear down) your former partner in the presence of your children. If you fail to control your behaviour on any occasion, and you end up in court, you can expect to details (of what might have been a momentary lapse) in the other party’s documentation. If your lapse occurs in court, your case before a particular judicial officer might be irretrievably damaged.
At the very least, losing your cool with your partner is likely to result in the waste of your efforts to date towards finalisation of the issues and poison the landscape for early future resolution.
If you feel yourself becoming angry during communication or negotiation with the other party, terminate – or take a break from – the contact as soon as possible, and resume only feel back in control.
4. Children are not property; parents do not have “rights”
Public policy officially discourages an approach to settling parenting arrangements by “dividing” the child between parents, like an asset to be distributed.
By various reforms to family law, the Australian Parliament has worked hard to change parents’ attitudes about what they might consider are their rights to their children, encouraging instead the idea that it is the children who have rights.
It is difficult for many parents to see their child’s interests as separate and perhaps different from their own, especially when the pain of even a short-term separation from the child seems unbearable. But this is exactly the task for a separating parent. And although parents themselves are not legally bound to prefer their children’s best interests to their own, many mediation organisations require parents to consider as a condition in their family dispute resolution agreements. Furthermore, if the dispute does reach a court, the court will determine an objective picture of what is in the interests and may retrospectively assess whether the behaviour of parents indicates are similar orientation.
5. Winning and Losing
It is easy for participants in a family law dispute to be drawn into a false i- winning and losing. Many people find that winning, in the end, is not the same as ach. outcome they originally set out to obtain. They discover that winning is more abot forward into the future with a sustainable lifestyle, good relationships, good health and self-image. If you have won in a court process at the expense of your health, your conscience, opinion of your children, or the ability to make cooperative decisions with the other pa may find, in the longer term, that you have lost – and possibly a great deal.
On the other hand, if you settle your dispute early (or even, by your own estimation, you “lose” or “give in” in family dispute resolution or at court) you may well be able to re-establish workable relationships to return fairly soon to a state of personal equilibrium, and retain the potential, in parenting matters at least, to negotiate more satisfactory arrangements later on.
It’s important to get a realistic idea of your prospects on the legal issues from a lawyer at an early stage. Pursuing small differences over months of haggling may be a waste of legal fees and of emotional and relationship resources. Settling early – by making some concessions – could be your most productive way out of a process that doesn’t in itself produce too many true winners.
It is worth it?
Damage to you and your children’s emotion state and recovery prospect continues to accrue in every week that a family law dispute goes on and on, as the destructive communications that seem to characterise the process are perpetuated. Many people who enter into family law litigation spend literally years of their lives in dispute about property settlements and parenting arrangements. They lose much of their settlement in legal fees. They suffer from depression, ill health, and loss of career impetus. Their children are sad, tired and disturbed. They sacrifice vast amounts of personal energy that could have been used to build a happier future sooner.
Remember that it is open to you, at any point, to choose not to be one of them. You can close the deal on the best terms available to you right now – and then get on productively with your new and real life.
6. Seek Support Services
Feeling lost and confused is absolutely normal. There is so much detail to address that it can become overwhelming. Many people find that it can be worthwhile to connect at an early stage with people other than lawyers who are familiar with the landscape of family breakdown and who can provide much-needed specialised information, support and encouragement.
The services available are many and varied. For contact details in your area, of the many of the various support services, click on Family Relationships Online or call Family Relationship Advice Line on 1800 050 321 for a referral.
We hope the above are good tips and for many a good starting point in proceeding with separation. Divorcing in NSW, is a complicated process, especially if there is strong differences between parties.
Avoid being hostile, and try and remain clear headed. Litigation is expensive in NSW, and therefore should you proceed with using lawyers be prepared to lose a large amount of the settlement to legal fees.
Lastly, the Australian government has provided online services, to help many navigate through the complexity of separating in NSW.