When a couple separates, it is not uncommon for one of them to initially resist participating in settlement negotiations. It may be because one person is not emotionally ready to face moving on. However, it may be that one of the parties refuses to negotiate because they believe they are in a more advantageous position compared to the other party and wish that situation to remain unaltered for as long as possible. For example, one party may be living in the former matrimonial home and the other party may be paying the home loan. In other cases, the party in the stronger financial position may wish to continue business activities without the other party having visibility of those activities for as long as possible. Or it may be that the children are spending more time with one party than the other and that party does not want the situation to change.
The unwillingness of a former spouse to participate in negotiations can cause significant frustration for the party who wishes to achieve a settlement and move on with their life.
In this article, we take a look at how to negotiate a divorce settlement and the ways a family lawyer can assist you when a spouse resists entering into property settlement negotiations.
What to do when your spouse refuses to negotiate a property settlement
Your family lawyer can often persuade your spouse to enter into negotiations by ensuring your spouse is made aware that failing to enter into voluntary negotiations may result in the parties becoming embroiled in costly and stressful Court proceedings. If a party makes an application to the Court for property orders, each party is required to file a number of documents with the Court that detail the matters relevant to the property adjustment under the Family Law Act 1975. This includes a comprehensive Financial Statement, which requires full financial disclosure of each parties’ financial position. On the first Court date, orders are usually made for the parties to obtain valuations of the assets and for the parties to exchange any outstanding financial disclosure documents. The Court also orders the parties to attend a compulsory mediation process, usually with a private mediator. Most parties are prepared to come to the negotiating table when they understand that this will significantly reduce the cost, delay and stress involved in negotiating a divorce settlement especially when the alternative involves compulsory mediation in any event.
Informal negotiations of a property settlement
After the other party has overcome their resistance to entering negotiations, they will usually engage a family lawyer. If both parties are represented, their lawyers can assist them with their negotiations either by way of communications between the lawyers or by way of informal round table conferences involving the parties and their lawyers coming together to discuss the property division.
At a round table negotiation, the parties can have preliminary discussions about the agreed steps to value any assets, the information they each require to understand the full financial position relevant to settlement issues and other preliminary matters of that nature. Once the valuations have been obtained and financial information exchanged, further round table meetings are convened to assist the parties to achieve a settlement.
This informal process is one of the most efficient and cost-effective ways of achieving a resolution of property matters between the parties and is particularly suitable where parties are relatively amicable or the property pool is not complex.
What other steps can a family lawyer take to help achieve a property settlement without a Court process
Sometimes due to the complexity of some aspects of the property matter, the family lawyers for each party might agree at an early stage that the negotiation process will be best facilitated by arranging for a mediation to be conducted by a neutral mediator.
The mediator is chosen by the parties with the assistance of their family lawyers and usually, the parties share the cost of the mediation. In advance of the mediation, the parties and their lawyers work together to identify the issues that require the assistance of the mediator and provide the mediator with detailed information relevant to the property issues between the parties. The mediation that is conducted in this manner is almost identical to that which is conducted pursuant to a Court order except that to achieve the latter process, each party will have also incurred the cost of preparing Court documents and Court appearances leading up to the mediation.
One of our roles as family lawyers is to recommend a mediator with the best skills suited to achieving resolution of your disputes. The significant benefit of arranging a mediation without an associated Court process is that parties will not have faced the stress and additional cost of being required to prepare Court documents and attend Court. The commencement of Court proceedings often serves to entrench each party’s position making the negotiations harder.
Parenting negotiations
If parents have been unable to reach an agreement about parenting arrangements, we can assist the parties to achieve agreement by convening a round table conference with the other party and their lawyer. An informal discussion assisted by a family lawyer can often help the parties reach an agreement in relation to parenting matters. Family lawyers can also assist parents with referrals to child psychologists who can also make recommendations in relation to the parenting arrangements that are in the best interests of the children having regard to their stage of development and their attachments.
A parent wishing to make an application to the Court about a parenting issue is required to try and facilitate both parents attending on a Family Dispute Resolution Practitioner (FDRP) to try and reach an agreement before filing the Court application. There are only limited exceptions to this requirement under the Family Law Act including if there has been family violence in the relationship.
Family lawyers will assist their clients to choose a suitable FDRP. Agreement about parenting matters is often reached with the assistance of the FDRP. The parties are then encouraged to seek advice from their respective lawyers before formalising the parenting arrangements.
Parties attending an FDR process can also agree with their lawyers representing them at the conference. If lawyers attend they will be available to document agreements during the conference.
Summary
Separated couples will ultimately benefit from taking every step possible to try and achieve a resolution of their property or parenting matter soon after separation, before positions become entrenched. If you are separating and about to go through the negotiation process, the best thing you can do is seek advice from your family lawyer. We can give you the right advice for your specific situation and help you prepare to achieve your desired outcomes in the negotiation process.
Related: Common mistakes people make when they separate and how to avoid them
DDCS Lawyers specialise in all aspects of family law and can help guide you through the negotiation and mediation processes. If you need assistance, reach out on (02) 6212 7600 to speak with myself or another Family Law Partner.
