Before You Separate: What to Ask a Lawyer and Common Mistakes Explained

There are also some common mistakes that people make in the separation process. This article explores these questions and mistakes while recognising there is no set approach as each family law case is unique. 

How long will the process take and what will I get?

While these are commonly the first questions asked of a family lawyer, there is no one size fits all answer when it comes to family law. As a lawyer, I give advice that is tailored to specific circumstances. 

What is important for you to be aware of is that your separation may take some time to come to a resolution. If you hope your matter to be all wrapped up in a week, be aware that is just not going to happen. Some matters are able to be resolved within a couple of months and some cases can take years.  The timing and best process for you will depend on the approach adopted by you and also by your former partner. 

If children, properties and businesses are involved they each add layers of complexity and therefore time.

What will it cost? 

This will depend upon the work to be undertaken by the solicitors and how far through the process your matter goes. Many couples will reach an agreement through mediation, while others will need to go to Court. If one party’s behaviour is not cooperative in the negotiation process, then costs can increase. Typically you could expect your costs will be greater if Court proceedings have to be instituted.

Where else can I get help?

For clients that are dealing with a messy or emotional separation I recommend, in the first instance, they speak to their GP and ask for a referral to a counsellor that is appropriately qualified to deal with the issues that they are wanting to address.  Alternatively, your lawyer often has connections with particular counsellors that deal with separation-related issues and may be able to recommend someone to you. 

If domestic violence issues are involved and a client is in immediate danger, they should call the police. Otherwise, DV Connect is another service that can assist. 

What do I need to do now?

Firstly you need to think about where you are going to live and if children are involved, what the parenting arrangements are going to be. You need to consider how you will access funds and start to gather documents that are going to be relevant. This can include paperwork such as your and your children’s birth certificates, passports and marriage certificate. If you do not have these then you should consider ordering copies.

Also take the time to gather any relevant financial documents like tax returns, payslips and bank statements, because you will need the information from these documents as part of the financial settlement process. Not having access to these documents will slow down the process later when you really want things to be moving along. So start collating them now. 

At the beginning of the separation process, I see four common mistakes that people make at the time of separation. If you are considering separating, taking a considered approach can save you time and stress over the medium term.

Mistake 1 – Moving out of the family home without understanding the implications

Before seeing a lawyer, clients often move out of the family home without understanding the implications. Whether you own a property jointly with your partner or if it is owned in one of your individual names, it will be included in the property pool to be divided.

If you opt to move out of the property, it may be difficult to get access to the property again. If you only take your personal belongings with you when you leave, then it can be very difficult to get furniture and other household items you need to set yourself up in other accommodation. So while moving out does not affect your rights to the property in terms of the settlement, on a practical level it can be difficult to get back into the property.

If the home is going to be sold and you move out then the other person is really in charge of getting it ready for sale. While you can have orders or an agreement that provides a mechanism for what is done in terms of the sale, such as carrying out any works or minor repairs, ensuring that the party who remains in occupation of the property complies with this can be difficult, which may mean the home is not adequately readied for sale, which can have an impact on the sale price you can achieve.

So deciding whether to move out is a tricky situation, because there are equally as many issues that come with people living separately under one roof. Tension often builds when you continue to reside with someone you have separated from so there are trade-offs in both scenarios. So it is not a situation of remaining in the home at all costs, you just need to be aware of the implications of moving out. Where there are issues with domestic and family violence, your personal safety should be a priority in which case leaving is likely to be the best course of action. 

Mistake 2 – Losing access to funds

Think about how your finances are structured and how you are going to pay for the cost of living, particularly if you do not have the income to do so on your own. Whilst your lawyer may be able to assist you to get access to funds by way of spousal maintenance or other interim financial support this will likely not happen overnight in which case you will need to have a plan to ensure that you can pay for your immediate costs of living such as rent, groceries, petrol and bills. 

This could involve putting funds aside prior to separation, re-entering the workforce, looking at what Centrelink and child support benefits you are entitled to or borrowing funds from family members or even applying for a credit card on a low-interest rate to tide you over.

These actions can help to give you a buffer until you have the time to engage a lawyer who can help you with getting access to spousal maintenance and come to a final financial settlement. 

Mistake 3 – Denying access to children

Leaving the home with kids and not telling the other person where you have gone and how the kids are doing can create a high level of anxiety and conflict and has potential to escalate things quickly.  Where there has been domestic violence these actions may be justified but it is important to obtain advice about where you stand. Where safety is not an issue, then denying access to children is not appropriate and may have ramifications. 

It is best to keep the lines of communication open and look to maintain contact with both parents. Obtaining counselling or a dispute resolution process as soon as possible after separation can help you to at least work out a short term arrangement that stops the situation from becoming unnecessarily inflamed. 

Mistake 4 – Inflaming the situation 

How you deal with the situation when you first separate often sets the tone for how the whole settlement process will pan out. For example, if you strip all the money from the bank accounts and clean out all the furniture from the family home, the other person’s reaction is unlikely to be favourable or co-operative and that can really set the tone for how things move forward and make it harder in the long run.  For this reason, be mindful of your actions, consider the pros and cons and the potential implications before you act. 

So while no separation is easy, it is helpful to pause and think things through so that it does not negatively impact you down the line. If you can look to remain sensitive to the situation then a satisfactory resolution for everyone involved can often be reached quicker. Plus you may increase the chance of avoiding the matter going to Court. 

The best chance of a desirable outcome following a separation is to know right from the beginning what actions you should take in terms of gathering up documents and making a decision about where you will live. By talking to a lawyer in the early stages before you separate, and getting informed early you could save yourself from making common mistakes that cause unnecessary stress and tension throughout the separation process.