No one prepares us for separation or divorce. We are in denial until it happens and most people (myself included) think we must hire a divorce lawyer straight away.
I blame it on the movies with the warring couples screaming “I’ll see you in court” before they storm out of the house, slamming doors firmly behind them.
The reality is that if you separate you probably won’t need to go to court and you might not even need a divorce lawyer. This is good news.
It’s important to know this because both are very expensive and if you can avoid them it will make your separation cheaper and more amicable. This, in turn, paves the way for you and your ex to be better co-parents to your kids, which is the No.1 goal for most of us.
I have been divorced for ten years and at the time of separation had no idea that it was possible without a lawyer. Since then I have worked in the single parent industry for eight years alongside divorce lawyers, financial separation specialists, mediators and thousands of single mums. I have learned a lot and although I can’t go back and do my own divorce differently, I can educate others so you know whether or not you need a divorce lawyer for your separation.
THE SHORT ANSWER
I go into more detail next, but the short answer here is that you don’t need to hire a lawyer when you separate or divorce.
Every family separation is unique so it might be that your mate who separated used a lawyer but that doesn’t mean you need to.
My ex and I used lawyers but looking back with the knowledge I have now, we didn’t need them as we were amicable and knew exactly how/what we wanted to separate. Using lawyers was a waste of money from our asset pool.
YOU ALWAYS NEED TWO DIVORCE LAWYERS
I had no idea when we separated that my ex and I both had to hire separate lawyers.
We even met together with one lawyer who drew up our Binding Financial Agreement (BFA) based on our wishes and were told after that one of us needed a separate lawyer to look over it … at huge expense.
I understand this is necessary for couples in dispute, but we weren’t so it was overkill. It even caused some conflict with lawyers pushing us to do things we hadn’t agreed on when we discussed the matter together.
Be aware: If your ex hires a lawyer, you will either need one too or have to learn to self-represent which can be hard if you do not know the legal system.
COURT BINDING DOCUMENTS WITHOUT FAMILY COURT
So you want your property settlement or consent orders for the care of your children legally stamped? That’s understandable but you can do this without divorce lawyers or family court.
If I had my time again (which I am glad I don’t … one separation was quite enough), I would use a specialist separation accountant. Here on Beanstalk and in our group the Single Mum Vine, we work with Divide – Simple Financial Separation. They will work with both you and your ex to reach an agreement and have your orders approved by the Family Court, without using lawyers.
Another option for couples with some legal knowledge and time on their hands is to DIY their separation. Consent order applications can be filed online through the Commonwealth Courts Portal. If you do this, I advise you to get a professional to check the application before submitting it so you have more chance of it being successful and not having to go through the process again … more money, more time.
MEDIATION INSTEAD OF A FAMILY LAWYER
If you and your ex are struggling to reach agreements about important matters such as caring for your children and splitting assets, you might think the next step is to hire a family lawyer each. And in some cases, it is.
However, I urge you to consider hiring a mediator first.
The difference is this:
- Lawyers will take over all communication between you and your ex which will now flow through four people (you, your ex, and two lawyers) by letter or email. For some couples, this helps. For other couples, it slows and aggravates an already high-conflict situation. It is also expensive.
- Family mediators will encourage you and your ex to continue to communicate but will facilitate it from a neutral standpoint to help you reach agreements. Mediation can be free or discounted (try Relationships Australia) and the cost is shared between you and your ex.
Which sounds better?
I’m not saying mediation is the right alternative to lawyers for everyone but it is an option that you need to know is available to you.
Note: If you try mediation, it helps to get legal advice before to educate yourself on what is reasonable and fair, and what might happen if mediation fails and your matter ends up in the family law system. Depending on your financial situation legal aid may be available to you.
GET LEGAL ADVICE WITHOUT HIRING A LAWYER
Leading on from the above point, you can get legal advice without hiring lawyers for your separation.
Many family law practices offer a free call/consultation where you can discuss your personal situation and receive guidance on the best way forward. The session will be short but it might provide enough information for your next steps.
I booked one appointment with a family lawyer at my local Community Legal Centre which was brilliant and free, although I did make a small donation. These centres are all over Australia and excellent if you need one-off legal support.
DON’T HIRE A DIVORCE LAWYER FOR YOUR DIVORCE
One of the biggest myths on this topic is that you need to hire a lawyer for your divorce.
Firstly, separation and divorce are different.
Separation is the tricky one. It is all about property settlement and the care of your children.
Divorce is an administrative procedure that can be done online in about 30-minutes when you have been officially separated for at least one year and one-day. Note: This can take longer if you are entering a sole divorce application or your ex has gone awol.
Only hire a lawyer for your divorce if you have money to burn or are unable to complete an online form.
I honestly didn’t know all this stuff when my ex-husband and I split.
YOU MIGHT NEED A DIVORCE LAWYER
I’ve pointed out reasons not to use a family lawyer but they have an important role in many separations
Use a family lawyer if:
- Conflict is too high for mediation or one party won’t agree to it
- You have tried mediation and failed
- Domestic violence is present (emotional or physical)
- Child custody is complex
- Estate/property matters are complex