When you file for divorce, there is a fair chance that you just want to get over with it as quickly as you can and get on with your life. There are cases where divorce settlements are resolved in a matter of a few months, while some families take a year or two to settle their family law disputes.
However, there are some instances when a divorce settlement can stall. In this article, we will explore some of the main reasons why a divorce settlement stalls, the role that family lawyers play in divorce settlements, and how to get the settlement process back on track.
Why divorce settlements stall
We do a fair bit of ‘second opinion’ work. When people come to me for second opinions, these concerns are usually in two categories. The first is that the divorce settlement is taking too long, and the second is usually that they have been in mediation and they are disappointed with the performance of their lawyer during that process.
There are a significant number of people who come to us for a second opinion. They are disappointed because either they haven’t been given realistic advice or they haven’t been provided information about how much time parts of the process will take.
There are also some cases when the separated living arrangements do not suit one party. An example of this is when a father moves out of the family home and leaves the mother in the house with the children. The mother might realise that by delaying the process, the longer that she stalls the property settlement, the longer that she will be able to stay in the family home, rather than it being sold sooner.
Property settlement timeframes
As lawyers, it is our job to help our clients when it comes to timeframes and sorting out a property during a divorce settlement. There is a process called financial disclosure which is essentially a ‘show and tell’ about what assets they have individually, separately and together. As part of that process, we identify what needs to be valued and discuss this with our client. This process takes, at a minimum, a number of weeks and the exact time frame depends on the complexity of the financial circumstances of the parties. For example, where there are trading businesses or companies and Trusts involved, the process is usually far more involved.
We as family lawyers need to communicate to our clients what we are required to do in our role and how long it may take, conditional upon the other parties response time. For example, if we brought a proposed agreement to your former spouse and they write back to us, we should be in a position where we have an understanding of the asset pool and what needs to be gathered. Going into a mediation, we wait for the other party to respond to the initial questions and exchange information. What happens often is that this process can become like a game of tennis wherein the lawyer prepares the response and sends responses to the other party for months, but the settlement has not really progressed. That is where people complain that the settlement is not proceeding. If your lawyer makes you aware that this can occur as part of the settlement process, then you will be more prepared when it does take some time. Often other approaches, such as proposing mediation or occasionally, filing an application in Court for the sole purpose of eliciting a response so that the negotiations can progress, are tools which can be helpful to assist to break this cycle.
What can be done to get the settlement on track?
What we often see is that the other party will have a lawyer who is strategically seeking additional financial disclosure such as requesting bank statements from years ago and they are doing everything they can to delay committing to a mediation date.
This is where filing an application for settlement with the Court can be helpful. Clients can become sensibly scared to get involved with the Court because of the costs and the lack of control over their case. But we can take this step to keep the settlement moving forward, provided the client is happy to do that. We understand that people are reluctant to take this step, because they fear that going to Court will be like stepping onto a runaway train, and that they will be heading towards a Judge who will tell them what will happen across all elements of their divorce.
In reality, the Court and a Judge does not want to hear from you until you have been through the entire mediation process so taking this step is not an indication that you will end up in Court and a Judge deciding anything for you. The Family Court system is focused on people finding solutions through mediation before time is allocated for Judges to make final decisions. By filing an application for settlement the ‘stalling time frame’ can be lessened because the Judge will provide a timeline for you and your former partner to complete your disclosure and evaluations, and they set a date that your mediation must be completed by. When it comes to property matters, mediation is compulsory, and it is very difficult to get a Court to waive the requirement for mediation.
Next steps to get your property settlement back on track
To avoid concerns about your property settlement stalling, communicate with your lawyer early on about time frames. Good communication both ways is key so you have clear expectations. You may know that your lawyer has written to the other party about a matter and believe that it will have been sorted out however, it might take a couple of months to identify the pool and schedule a date for mediation. Good mediators are often booked a couple of months ahead so if you aren’t in their queue for a mediation, the delay is not unreasonable.
When we talk with the clients and provide them with second opinions, we analyse the other party’s requests and determine if they are reasonable requests or if they are an attempt to avoid the settlement progressing. Sometimes it may require us to look for solutions.
Where we tend to find that we take on a client who has come to us for a second opinion, it is where their lawyer is more of a generalist lawyer who offers family law but does not specialise in family law or have the depth of knowledge and experience in this area of law or their has been a communication breakdown between the lawyer and the client. For this reason we recommend you seek specialist family law advice to minimise the likelihood of a protracted settlement.
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone (07) 3007 9898 or secure a time by clicking here.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.