Why You May Need to Be Cautious Even in an Amicable Separation

An amicable separation often looks and sounds like this…

Usually they are able to talk respectfully, both are continuing to meet their obligations irrespective of their separation, including paying bills and have a genuine focus and shared interest in having some type of relationship for the benefit of their children and/or for themselves. There is an element of goodwill between them despite the challenging circumstances in which they find themselves. 

However it is still wise to be cautious and make sure you are fully informed when making decisions when navigating a separation amicably.   

Below are three things to be alert to after separation, even when things are amicable and some examples I have seen in my practice as a family lawyer, to illustrate why caution is still required.

1. Be aware of delay

If I think about Michelle and Terry*, they are an example of where their intention to be amicable didn’t unfold as they planned…

Michelle has been trying to negotiate a property settlement over the last few years. She has been trying to manage things cooperatively with the intention to work at a pace that they were both comfortable with. But, because she’s given him some leeway and delayed on progressing the settlement – even though they had come very close in their informal discussions – they are now at a position where his work circumstances have changed considerably.  The asset pool now looks quite different to what it did back when they decided to separate.

They were trying to amicably work things out, though this is ultimately been to Michelle’s detriment because of the additional liabilities that have been incurred due to Terry losing his job over that time.

For Michelle that now means financially, things are looking somewhat different for her than they previously did. Even though Terry had been continuing to pay for some significant expenses as they navigated their settlement, she is now at a disadvantage as the expenses continue but the asset pool from which to pay these, is now significantly smaller.

For Terry, who also had intentions to separate amicably and fairly, not only is he without employment, but also wasn’t able to provide his former spouse in the way he had intended to.

So, for the sake of trying to deal with as much of it between themselves and not gain early legal advice, this has, unfortunately, been to both their detriment.

The key element to this is that we are not looking at the asset pool from when they separated, we are looking at the asset pool now. The only way to draw a line in the sand is to actually finalise your settlement.

2. Have a back up plan even if you are hoping for the best  

Brian and Charlotte* had a different situation. Charlotte had expressed her intention to separate from Brian and she moved out of the family home with the children. Brian was hopeful of a reconciliation, so he didn’t proactively progress the parenting arrangement by formalising an agreement.

Charlotte was living further away than Brian would have liked but for the sake of trying to be amicable and there being a possibility of them getting back together, he left that for a period of time without raising it. Unfortunately they didn’t get back together as Brian had hoped.  Given the time that had passed since Charlotte left, this meant that the Court would not change the parenting arrangement in place. It meant that the outcome was different to what it might have been for Brian, had he acted earlier, shortly after Charlotte had left.

So what can we learn from their experiences?  Whilst their intentions were to approach their separation amicably, they achieved less than ideal outcomes because they weren’t informed about the decisions they were making and didn’t realise their significance at the time because they had delayed getting early advice from a specialist family lawyer. Each situation is unique however there are some things that need to be considered in the meantime to protect your interests.

Often in the most amicable of circumstances people can come to an impasse about a certain issue. If I think of a client who came to me with a desire to try and work things out amicably and not go to Court, she and her former husband had been able to reach agreements and everything was progressing in a fairly amicable way. But, there was one particular issue where they were at an impasse and had very different views about it.

And while they’re still dealing with each other amicably there came a point where the assistance and advice of their respective lawyers has meant that they both achieved the amicable outcome they had planned on.

An amicable divorce doesn’t necessarily mean you’re doing it without a lawyer. It is just that the processes that you’ll may decide to implement and the strategy that you adopt with the assistance of your lawyer is developed by your lawyer taking into account your goal of having an amicable separation.

3. Don’t make promises you can’t deliver on

The other issue I find can be a real problem is when people are so amicable initially that they make promises that they actually can’t deliver on – because neither one of them has received advice, allowing them to make the proposal in an informed way.  Rather than having committed to something and then realising they will need to try to get out of it later, they would have been better to just say, ‘I know we want to try and achieve that so we each need to go and get some advice about how we’re going to do it’, rather than have a situation where one person over-promises and the other person feels as though they are withdrawing from what they had previously agreed to. That causes friction.

Often it means they haven’t thought about something really fundamental –  for instance, one person is thinking ‘Yes, you can have the holiday house’, but what hasn’t been considered is, how do we refinance the property?’ Because if the other person doesn’t have sufficient income to secure or maintain the refinancing, that then creates larger problems. These are practical things that need to be worked through with assistance of a team of professionals, including their lawyer, accountant and often a financial planner.  When people are having these very preliminary discussions, reality testing whether what you want to do is practically achievable is key. Agreeing to something that is fundamentally going to disadvantage you or your former partner for years to come can be avoided if advice is sought early on.

So, while an amicable separation is to be applauded, it is important to be realistic. It takes two people to have an amicable separation from start to finish. Be alert but not alarmed and get informed early. Consider the all the outcomes that can occur even for the most well-intentioned of separating couples and seek specialist advice from a family lawyer to make the best informed decisions for you and your family.