Regret the Spouse you chose? Don’t Regret the Divorce Lawyer you Choose!

Regret the Spouse you chose? Don’t Regret the Divorce Lawyer you Choose!

Written by Erica Panagakos

The Judges of the Federal Circuit Court of Australia recently invited lawyers practising in family law to attend a seminar. During the seminar, the Judges expressed frustration at the number of lawyers who wait until they are at Court for a hearing or conference before making a genuine attempt to resolve their clients’ disputes. I have always considered dispute resolution to be the aim of the game and I too am increasingly frustrated by lawyers who get caught up in their clients’ emotions and “pump up” a fight instead of recognising that it is in their clients’ best interest to diffuse it.

The seminar caused me to reflect on my recent involvement in a matter that was listed for a conciliation conference with a Registrar of the Court. The parties had a very modest asset pool comprising a small amount of equity in the former matrimonial home, basic furniture, old cars and modest superannuation. The facts of the case are not remarkable – both parties are of similar age, earning a similar income. There were no contributions of significance by either party at the time of cohabitation or during the relationship and the parties had no children. The parties separated three years ago.

My client moved out of the former matrimonial home at separation and the wife continued to live there. For two years, my client tried to resolve the dispute on his own but the wife refused to move out of the home and was not making the mortgage repayments. The bank threatened foreclosure which prompted my client to seek legal advice. I attempted to negotiate with the wife on my client’s behalf. I emphasised that there was not a lot to argue about and encouraged a sensible resolution of the matter to minimise legal fees and so that each party could receive something from the modest asset pool. I made it very clear to the wife that if the bank took possession of the property, both parties would be significantly disadvantaged.

The wife was not willing to negotiate and refused to move out of the former matrimonial home notwithstanding that she clearly could not afford to keep up with the mortgage repayments. The arrears on the mortgage increased by thousands of dollars. My client issued proceedings with the Federal Circuit Court in early 2017 to force the sale of the house and to bring the matter to a conclusion.

The matter was listed before a Judge for a first hearing in May 2017. The wife engaged a lawyer. At Court, the wife agreed that the house is placed on the market for sale. It was disappointing that it took for my client to issue Court proceedings for the wife to agree to sell. The arrears on the mortgage had increased by even more as a result of the wife delaying the inevitable. Fortunately, the house sold relatively quickly and the sale proceeds of well under $100,000 were held by a conveyancer on behalf of the parties.

I tried several times to settle the dispute well before the matter ended up in Court by making offers on my client’s behalf. My client offered that the sale proceeds and superannuation of the parties be divided equally between them. He suggested that the parties otherwise keep what they had retained since separation in 2014 in terms of their respective cars and furniture, as these assets were of nominal value. This was a pragmatic settlement in circumstances where neither party could afford the cost of ongoing litigation. As an alternative, my client offered a 50:50 division of the parties’ overall asset pool which worked out roughly the same. The wife rejected the offers which were repeated by my client several times throughout the course of the matter. I also asked the wife’s lawyer to put an offer on her client’s behalf so that my client could consider that, but no offer came. Instead, I received lots of paperwork from the wife’s lawyer in relation to the wife’s financial position, together with requests for my client to provide various documents in relation to his finances. The exchange of the materials was largely irrelevant and in my view it caused the parties to incur significant and unnecessary legal costs.

A week before the Court ordered conciliation conference, my client instructed me to repeat the same offer. I pointed out to the wife’s lawyer that now that the wife had seen every document relevant to my client’s financial position if the parties could settle they would both save the costs of lawyers preparing for and attending the conference. The wife again rejected the offer.

I attended the conference with a one page summary of the facts. The wife’s lawyer attended with a five-page document setting out various calculations that she had made. I hate to think what the wife’s lawyer would have prepared if the estate available for the division was significant! Within ten minutes the Registrar of the Court confirmed my view that there was nothing remarkable about the matter and that the parties needed to settle. The Registrar agreed that the 50:50 settlement offered by my client several times over the course of the matter, including the week before the conference, was pragmatic and the matter ultimately resolved on that basis. Had the wife been more conciliatory, the parties would have avoided the need for Court altogether and saved a lot of time and money on unnecessary legal fees.

Unfortunately, the reluctance of other solicitors to attempt to resolve matters either prior to Court proceedings being issued or prior to hearings, trials or conferences is something we at Belperio Clark see all too often. You may have heard the expression “a bad lawyer can let a case drag out for several years and a good lawyer can make it last even longer”. At Belperio Clark, we are not like other lawyers and we are very proud of that. It is unfortunate that notwithstanding the very obvious damage litigation causes to families not just financially but also emotionally, some lawyers continue to encourage it and in addition, do not turn their mind to attempting to settle the matter until their clients have spent thousands of dollars in legal fees and are worn down by the fight.

At Belperio Clark, we pride ourselves in attempting to resolve matters for our clients right from the very beginning, in the most cost-effective way possible. At Belperio Clark, our family lawyers are trained mediators and Collaborative practitioners. We care about finding the best solutions for our clients. Very few matters need to be litigated and we are always focused on a settlement, even when litigation is absolutely necessary.

In the event that you require more information or if you would like to speak to one of our experienced family lawyers please contact us on 8212 1322.[/vc_column_text][/vc_column][/vc_row]

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