What you should ask a family lawyer before separation

The law is accessible to everyone. We walk you through what you should ask a family lawyer before separation so that the law can work for you.

It is natural to think that some of the first questions you should ask your family lawyer are:

  • “What does the law say should happen in relation to my children?”; or
  • “What does the law say should happen in relation to our property and finances?”

When you first meet many family lawyers, they might ask you to provide some details about your circumstances and then proceed to answer the above questions.

You would have heard that every matter is different and that is correct. This is why it is potentially dangerous to rush into finding answers to those questions and then using them as your bottom line in negotiations. The lawyer has only got one side of the story and will not have many relevant facts; you can understand why it is difficult to have ‘the answer’ right from the start.

Since those questions can’t yield a complete answer in the first appointment, you should be asking the following to better use your time and money:

  • “What do I need to do to make sure the children and I are protected physically, financially and emotionally?”;
  • “What do I need to do with regard to my former partner to ensure he/she is more likely to reach an agreement with me than not?”; and
  • “What process should I engage in to make it more likely than not that we can reach this agreement?”

You can see that finding out what the law might say about fair arrangements for children or fair financial arrangements is not one of those initial questions. The key to a mutually acceptable arrangement in relation to children and finances is to understand what your needs and interests are and what your former partner’s needs and interests are, and then to choose what arrangements and outcomes could accommodate both. The law is accessible to everyone. What you need to know from your lawyer is how you can make the law work for you in your situation.

This process is often called an interest-based negotiation and is certainly the ideal method when dealing with parenting disputes. The court is given wide discretion, and two lawyers can easily come to a different conclusion on the same set of facts. The next problem is that the two parties almost always disagree on those facts.

A checklist to answer when you have just separated might include:

  1. Whether you need professional help breaking the news to children about your separation;
  2. The arrangements that can be put in place for children to ensure they have an appropriate continuing relationship with both of their parents;
  3. The steps to take to ensure that you are financially secure. This might include preventing money being taken from bank accounts, securing copies of documents etc.;
  4. When the correct time is for you to start considering long term solutions. It might take a year or more before both parties are ready to deal with long term solutions.
  5. What process should you put in place to discuss or reach an agreement for both the short and long term? This might include direct negotiation, mediation, collaboration or discussion through lawyers.

So, in the end, beware. You don’t need to know what your rights are at the very beginning of the process. Give our team a call on (03) 9793 7888 or send us an email to reception@justfamilylaw.com.au to book an appointment and find out your available options.