COURTS & SELF REPRESENTING:
TIPS AND TRAPS
Tips & Traps: Secrets from the Legal Experts
Whether you are self represented or represented by a lawyer, there are some tips, traps and tricks that could really help you in court.
We've compiled a list for you....
- Moving out of the home you shared together can cost you a lot of money. Don’t move out if you can help it or without consulting your lawyer. Try living under the same roof. Your spouse might hate it and move out.
- Either you or your former spouse can empty financial accounts or “max out” credit cards without the other’s consent. You may even be able to draw down on lines of credit or mortgages secured against property. Make sure you have access to funds and that your former spouse can’t take it all.
- Don’t air your dirty laundry in court or in court documents. Tell a friend instead. The Judge doesn’t care, it is rarely relevant and it makes you look like you’re concentrating on less important things. You will just leave a bad impression with the judge.
- Everything you say, do, write, text, email, tweet, and facebook about, including things said in the strictest confidence to family and friends, can get back to your former partner and may become evidence in court. If you don’t want it in evidence in Court, don’t say it and never write it.
- Never agree to a property settlement where your spouse is responsible for the ongoing payments on the home or car you’re keeping. The lender won’t care about your arrangements with your spouse, even if they’re in a court order and will seize and sell your property if the payments are not made.
- Don’t use your children as your therapist and don’t question your children regarding the activities of your former partner. Don’t use children to pass messages between you. If you do any of this, you put your children in the middle, you will make them victims of your dispute and if your matter ends up in court the judge won’t think you are acting in the best interests of the children.
- Guilt equals money, so strike while the iron is hot. If your spouse cheated, left you or did the wrong thing, don’t underestimate their guilt factor, even if they don’t appear guilty. Try to reach agreement quickly before the guilt wears off. If you’re the guilty party, remember family law is “no fault” and put guilt aside or it will cost you unnecessary money.
- Tell the school about your separation, give them updated contact details and talk to the teachers. Ask them to tell you if they notice behavioural issues with your children.
- Apply some commercial reality. How much is it worth to you. Don’t spend thousands of dollars fighting over something worth hundreds of dollars. In 5 years what will you be happy to have spent money on.
- Do put a price on your wellbeing. Good legal strategy isn’t usually a good lifestyle choice. Everybody always underestimates the financial expense, stress & emotional toll negotiations and court action will take. Take a bigger picture approach, think long term and make sure you balance and weigh up the total ultimate cost - financial & emotional - of what you decide to do.
- Don’t depend on your memory, keep a diary. But be careful what you write as it may be read by the Judge and your former partner and used against you. Perhaps just write dot points only so that can jog your memory later.
- Never show your children court documents or discuss legal matters with them. Don’t pull your children into the dispute. Keep adult issues between adults and let your kids be kids. If they ask tell just them you’re working it out with their mum/dad.
- When making parenting arrangements do leave the past in the past. Forget past arguments with your former spouse. Focus on the future and what is best for your children.
- Don’t put your former spouse down in front of the children. If you can’t behave respectfully towards the other significant person in their life it will be a cross against you when deciding how much time your children spend in your care. The judge needs to know you put the kids first.
- Pay your Child Support in full and on time. If you don’t a judge will not be impressed. If you disagree with the assessment then immediately take steps to have the assessment changed. While you are waiting for it to be reviewed, still pay the amount assessed. If you want the court to order that your children live with you or spend more time with you need to show the court you’re responsible, will comply with the law and support your children.
- If you don’t engage a lawyer or you want to keep your legal costs as low as possible, read everything you can and draft everything you can. It’ll save you paying your lawyer more than $400 an hour to explain it to you or draft it for you.
- If you engage a lawyer, get one who specialises in Family Law and follow your lawyer’s advice. That’s what you are paying them for. They know the law better than you. If you really think they’re wrong and you’re right, get a second opinion.
- If you’re paying a lawyer, tell them everything and not just what you think is in your favour. Forewarned is forearmed, your own lawyer doesn’t want to be ambushed. You might be surprised as how a lawyer can turn something in your favour.
- Don’t punish extended family members, including the ones on your former spouse’s side. It is in the best interests of the children to maintain relationships with their Grandparents, Aunts, Uncles, Cousins etc. If you have to, lay down some ground rules.
- Don’t expect the court to compensate you for what occurred during your relationship. The court is there to make a decision on how to divide property and how children will divide their time between their parents, not to rewrite the past.
- Before you separate take photocopies of bank account, share & superannuation statements, personal & business tax returns, balance sheets and other documents that will help you in negotiations or in court.
- If you move out take all your official papers (birth & marriage certificates, passports, tax returns etc) with you. Take anything of sentimental value or which you want to make sure you keep, as well as your personal items, clothing, jewellery and those items that cannot be replaced including photographs and heirlooms. Don’t rely on being able to go back and get it later. Many have and have never been able to get it back, or spent thousands getting it back.
- Change your Will if you don’t want your former spouse to get everything.
- If you and your spouse own real estate in joint names as “joint tenants” it will automatically go to the survivor no matter what your Will says. Sever the Joint Tenancy so you own the property as “tenants in common” instead.
- Do make sure your former spouse knows how to contact the children. The children have a right to be able to communicate with both parents and judges expect you to facilitate that. Don’t hide the children from your spouse.
- Don’t play games. Judges have seen it all before, can spot game players a mile off and won’t like it.
- Don’t forget to apply for a divorce after you’ve been separated for 12 months and have finalised your property settlement. If you die before you are divorced your spouse can make a claim against your estate.
- If you haven’t finalised your property settlement then put off applying for a divorce, as the 1 year time limit requiring you to start action in court (and so incur legal costs) will start when you divorce. Give yourself time to do your property settlement first, just change your Will to protect yourself and sever any joint tenancies.
- You only have one year from the date of your Certificate of Divorce to apply to the Court for property settlement or spousal maintenance. Don’t leave it too late. If you haven’t got Consent Orders or a Binding Financial Agreement within 9 months of being divorced, start preparing so you have enough time to apply to the Court.
- Safeguard the childrens’ passport if you think the other parent may take them overseas. If the children don’t have a passport and you’re worried, then take the appropriate steps.
- Courts make decisions on the evidence before them. The crux of all property settlements is the value of the assets. Only qualified people can value assets. You, your lawyer and the judge are not qualified. The only evidence a court will accept is a valuation by an appropriately qualified person. You’ll need a written valuation of property, cars, the house contents (by a second hand dealer), a business etc.
- Do keep paying the bills. You don’t want the bank or a creditor to take action. Plus being irresponsible won’t impress a judge. Tell your creditor about your separation. Swap to interest only repayments or make a payment plan.
- Do get a support person you trust implicitly. You will need to make sure you have perspective and someone to lean on through the stressful process. Ask them to take notes for you and go court with you. It’s easier for an impartial person to remember things or make notes as they listen. There’s a lot of waiting time at court. Even if you take a book, it’s nice to have someone to chat to or to run and get a coffee for you.
- Do get a good filing system. A – Z folders are good and cheap in stores like Big W or office supply stores. Take it with you to all legal appointments and court dates. You never know what you might need to have with you.
- Always be prepared at Court. Courts hate you wasting their time and may penalise you for it. Show respect, be fair and prepare properly.
- Always follow Court Orders, even if you don’t agree with them. It’s the law. Breaking it will anger the court, have consequences and may cost you money.