The Ex-Files: Navigating the financial pitfalls of a relationship breakup with Jeremy Sutton
Question: I have been separated from my wife for three years. We have three children aged between 7 and 11. All this time, we have been going back and forth between lawyers, and are no further along with making any decisions.
I am at my wit's end with the process and the uncertainty. I actually feel worse now than when we first separated. I would just like to be sorted with our assets and have a plan for seeing my children. I met a new partner a year ago and would like us to live together, but at the moment I don't feel like I can move on at all.
Is this typical? How long should it take? Is there any way to just get it finalised?
Answer: This is a tough situation to be in and as you say, it can wear you down over time.
Every separation takes a different length of time to work through. If both partners are willing to compromise, then decisions can be made, and legal documents drawn up relatively quickly. If there are differing viewpoints, then there can be a lot of back and forth, as you describe.
Here are a few different methods couples use to work out agreements. I hope one of these will help you to finalise your divorce:
Round table meeting
If you haven't done this already, I recommend having a round table meeting with your lawyer, your partner and her lawyer. While you might be talking about the same issues you've covered in your correspondence, in my experience talking face to face does help.
Mediators are highly experienced in assisting with family law disputes involving property and/or care of children. Their role is to help you define the issues and explore options for settlement.
You can choose whether your lawyer attends with you. You can have as many sessions as you need, but often good progress can be made even after one session.
If you make decisions, these can be documented and will form part of your relationship property agreement or your parenting agreement.
I highly recommend mediation and have seen it work many times, even when the situation seems stuck.
Arbitration is used for relationship property disputes, including spousal maintenance, but not for arrangements regarding children.
It is similar to going to court. The arbitrator will consider all the information and both viewpoints, then make a decision on how your dispute will be settled.
The decision is final and binding, and is enforceable by the courts.
Arbitrators can rule on complex disputes, and they are a good alternative to court for many reasons: you can start the process very quickly, you have flexibility over the time and place for the hearing and the arbitrator will make an award (decision) within 45-90 days.
This is a lot faster than the court process. It is also less expensive and completely confidential to the parties involved.
Both Parties have to agree to arbitrate, mediate or have a roundtable meeting. If one party does not agree, normally the matter is headed to court.
The court process itself has many steps.
First you need to file an application to the court, supported by affidavits and financial documents, and your partner will need time to reply to this.
Then there is a judicial conference to narrow down the key issues. The judge may have questions about the discovery and documents which need to be addressed. It is hoped this step will move negotiations forward, but if no solution is reached you may be instructed to have a round table meeting with your lawyers and a mediator, or a settlement conference with a judge, who will also encourage you to come to an agreement.
It could take nine months to get to this point.
The final step is a defended hearing, which will be set for about six months in the future. You and your lawyers will present arguments to the judge, who will make a final decision.
The judge might make a ruling soon after, but if it is a complex case it could take a further few months to decide. Only 1% of couples will progress to a defended hearing. The rest choose to settle during the process.
All these options can help move your negotiations forward. Unfortunately, if one person decides not to compromise you may have no choice but to initiate the court process.
Divorce can be very stressful, as you've recognised, so make sure you take good care of yourself during this time. Get support from friends and family and consider talking to a counselor - many people find this helpful.
Court is not the ideal way to settle; it is expensive and takes a long time, but at least once you've started the process, there is an end in sight.
- Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures.