Separations are highly emotional times and you need to work out a property settlement that works for you.
Ok, you have separated and despite your best efforts it is no longer amicable between the two of you. Communication is toxic. Both of you have hired a lawyer
(a really expensive one) and viscous correspondence is being traded between the two to them. Your last bill has you choke on your morning coffee. You feel like you are going nowhere. In fact bashing your head against a brick wall seems a real option to you right now.
Your lawyer has suggested you go to court. You are not sure this will solve anything. And of course your legal fees will keep going up.
You are right to question this next step.
Here is a list of 7 things you must know before you decide to agree to commence proceedings in your property dispute.
- Going to Court is costly. It is not unusual to be looking at spending at least $5,000 – $10,000 to start proceedings. Some lawyers may be able to do it cheaper, but this is the range. And remember, this is to start proceedings. It may not even cover your lawyer or barrister appearing with you at the first court date.
- Once you are at Court your legal fees will continue to soar like a jumbo jet taking off. Each time you have another court date you are looking at spending thousands of dollars. As your matter progresses through the Court system there will be times when your lawyer suggests you hire a barrister. Barristers are specialized lawyers who go to Court. It is always difficult for clients to understand that when you hire a barrister the lawyer will also come along, which means you will be paying for two people to be at Court with you. It pays to remember, in the legal world there is no two for one prize.
- Court is not fast. Matters can take anywhere from 12 months to two years before they are finalized. American television has much to answer for. Many clients cannot understand that cases do not get sorted on their first court date, like they do on television. Once your case is started there will be multiple court dates, from the first court date to a conciliation conference to more mentions and eventually a final hearing date.
- Nothing much happens on the first return date. Clients often come to court on that first date expecting the Judge to have read their material and make a decision. This is not the case. On the first return date the Judge will find out what the matter is about (by asking the lawyers) and see where it needs to go. And your case will not be the only case listed before the Judge. List days are very full days, with usually at least fifty or so matters before the Judge.
- Court is stressful. Hardly anyone likes the idea of going to Court. It is stressful. Very personal aspects of your life will be discussed in a public forum. This can be intimidating and demeaning. People often approach Court full of bravado, busting to tell their side of the story. However, when it actually comes to the crunch and they need to get in the witness box, courage deserts them. Being a witness is not a walk in the park. It is not something you would want to do voluntarily.
- You may not get the outcome you are after. Going to Court means a third party will make a decision about your property or children. This may not be a good thing. Being creative in your negotiations may get you a better outcome than getting the Judge to make a decision. A Judge will not be interested that one of you wants to try and keep the former matrimonial home. It is quite usual for the Judge to make orders to sell property and proceeds be divided a particular way.
- Once you are at Court a strict timetable will have to be followed. You can no longer ignore the case. The matter will proceed through the Court system with a view to be finalized. Whilst it can take time, it will move toward a final hearing.
Unfortunately, some matters need to go to Court for parties to move forward and be of a mind to settle the case. And of course some cases do not settle and need the final hearing date. Those however are in the minority. Most cases settle at some point in time during their time at Court.
If your case has reached a stale mate it might be due to you or your ex not being in the right frame of mind to settle. Before you go to Court you might want to try mediation. A solution reached by both of you, even if it is one you are not 100% happy about, may be better than a Judge imposed decision after you have spent forty or fifty thousand dollars (or more).
Remember to get legal advice for your particular family law problem. This is a general article only.
Read more about the Family Law system in the novel Just and Equitable, which follows Melvin Goodheart through his separation (a humorous look at Australian Family Law).