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What to do when you seperate

Podcast Episode by Pearsons Lawyers
6 April 2021

(Transcription)

Leanne Abela:
Hello, I’m Leanne Abela.

Joe Schepis:
And I’m Joe Schepis.

Leanne Abela:
Welcome to Pearsons Family Law Podcast. Today’s topic Joe is…

Joe Schepis:
The dos, the dos, the things you should do upon separating.

Leanne Abela:
So you’re separating from your partner, whether it’s a de facto or a husband or a wife, and there is a list of things that we think would be really useful for you to know when you’re about to separate, which you would do either just before you’re separating or immediately upon separating. And so this podcast is going to cover those topics and give you some really useful tips to follow.

Joe Schepis:
So one of the things that you should do when you’re considering separating is to get some documents. So one of the things a lawyer is going to ask you, if you go to see a lawyer after you separate is information about bank accounts, tax returns, super statements, and those sorts of documents. So it’s pretty important before things go astray to have a look around the house and so that you can find, gather together some documents, and just have them ready so that when your lawyer asks for them, you’ve got them at hand.

Leanne Abela:
That’d be really useful for you to have before your first appointment. So often clients say, what is it that I need to bring to my first appointment? Well, most clients bring nothing but themselves, and that’s fine. From our perspective, our firm sends the clients a list of questions we’re going to cover, so that we find that our clients are prepared with some notes, covering the topics we’ve asked them to just think about before they come to their first appointment to make the most out of that first appointment. But you’re right, Joe, if they can come with some bank statements or a superannuation statement or a mortgage statement, that will be much more efficient and better use of time.

Joe Schepis:
I think the clients that find the most use out of our appointments are the ones that are prepared, and some are very well-prepared. Some have looked at our YouTube presentations and got that information from there to give them some direction about what sort of information to get. And the more information they can give us, the more accurate the information they give us, the more accurate our advice is and the more beneficial to the client ultimately.

Leanne Abela:
Absolutely, absolutely. And we know that sometimes it’s hard, you’re going through the stress of a separation, and the last thing you want to do is to be spending your time sorting through papers. But it would be a good idea to get them if you can.

Joe Schepis:
Yeah. Another useful thing to do when you’re separating is to shop around. Shop around for a lawyer that you can engage with, that you can communicate with, that you can trust. Some clients feel that once they see a lawyer they’re locked in and they can’t move, it’s important that you understand that that’s not the case. I encourage my clients to get a second opinion if they feel like it. I encourage other clients that have already got a lawyer, get a second opinion. At Pearsons we give the first consultation free of charge and you can get a second opinion without any commitment and with no charge.

Leanne Abela:
Look, my view is that having a good lawyer that you can trust and that you can communicate well with is as important as communicating with your doctor. So just as you shop around for the right doctor, the right pharmacist, the right dentist, the same thing goes with a lawyer. Although lawyers are all qualified, they all have different skills when it comes to communicating, understanding how to put things in perspective and to put things in a language that you’ll understand, the speed with which they communicate, the way in which they communicate. All of that is about creating a personal relationship with your lawyer so that you feel that you can trust them and that you can move forward with them. That is absolutely crucial. There is no point spending your money on somebody that you just don’t get a connection with. So shop around, it costs you nothing to shop around.

Joe Schepis:
Yeah, that’s very important. And then you need to be able to communicate with your lawyer and give them the information they ask you, and you need to understand what they’re saying to you. They’re going to give you advice. The lawyers job is to give you options that are available to you and for you to understand those options and to know what the pros and cons of each option are. So if you’re not able to communicate with your lawyer, if they’re not able to communicate with you, you’ve got a big problem. So it’s important that you shop around for that.

Leanne Abela:
That’s right.

Joe Schepis:
Another thing that I tell my clients when they come to talk to me about resolving a matter is to have in their mind a budget. A budget, both as far as time is concerned, and as far as money is concerned. So what I say to them at the get-go is we’re going to start a process of negotiating. And I tell my clients a few of the same things, have a timeframe. It might be three months, it might be six months. Have a budget. It might be $2,000, it might be $3,000. And once the budget and the timeframe has expired, sit back, take stock, and see where you’ve gotten and how much into the negotiating process you have explored and where you’ve got to. If you’re down a path and you think you’ve resolved the matter or you’re coming close to resolution, then keep going. But if you spend three months, six months and $2,000 or $3,000 negotiating, and you’re no closer to resolution, then it might be that you need to explore other options.

Leanne Abela:
That’s right. I mean, I think you can tell fairly quickly, or we as lawyers can tell fairly quickly where the negotiations are heading. You can tell whether it’s worth continuing on the negotiation process, which of course costs money, or whether you should be going into the mediation process or whether you should simply be cutting the costs on the negotiation and going straight to litigation. I’m sure that you’ve had clients as have I, Joe, where they come to you because they’ve transferred from their old solicitor, they want to come to you to represent them. And what I find is that they have spent thousands and thousands of dollars negotiating. That money could have been spent issuing proceedings and negotiating in the context of court proceedings, where there is a timeline and where people have to come to the table and negotiate reasonably because either a registrar or a court appointed mediator or a judge is going to tell them what the ambit of the claim is.

Leanne Abela:
And so you’re far better off putting those resources, which can be wasted on negotiations, into a core process where you’ve got timetabled and directive and contained negotiations. Don’t you think?

Joe Schepis:
Yeah, you’re right, Leanne. And I think one thing that clients don’t understand, the consumer wouldn’t understand, is that the core process involves compulsory mediation. So you have to negotiate. Part of the process involves all the parties sitting together, without a judge, but with either a registrar who acts as a mediator or a private mediator, and to explore mediating the dispute before a judge makes a decision.

Leanne Abela:
That’s right. And the reality tests will happen at that mediation. Because you might find that a lawyer is telling their client what the client wants to hear, because that’s easy. The most difficult thing for a lawyer to do, and we do it all the time, is to tell them what they need to hear. They pay us to tell them what they need to hear, not what they want to hear. And so what you find is that at mediations reality tests happen and people get a sense of what is really likely to happen if they don’t negotiate a settlement.

Joe Schepis:
Yeah. Well, the mediator, part of their job, again, is to be the devil’s advocate and point out the shortcomings of each party’s case to them and to their lawyers, so that if they haven’t been told by their lawyer by that stage, the mediator will certainly tell them. And we find that most cases settle at mediation or before. So it’s a very worthwhile process to go down. It’s costly, but it’s very worthwhile. In most cases.

Leanne Abela:
I think one of the other useful tips, Joe, we can give to clients is that some clients don’t want to answer your questions. So we’re their lawyers, everything they tell us is privileged and confidential. And so when we’re asking questions such as, where are you on Centerlink? What stage were you living together? When did you separate? Even basic questions, some clients are very hesitant to tell us the truth. We cannot help them solve their problem, and we cannot get the best outcome for them if they don’t tell us the truth.

Joe Schepis:
And it’s going to come out.

Leanne Abela:
And it’s going to come out. So we’re not asking a question for fun. We’re asking a question because we need to know the answer as part of that entire jigsaw puzzle of how we map out a solution. So it’s no good giving us that answer later, or being coy or untruthful about what might be in a bank account or holding a bank account on behalf of a parent or holding trust accounts on behalf of children. We need to know the answer to the questions we ask.

Joe Schepis:
The more prepared we are, the better we can represent clients. If we know about the problem in advance, then we can prepare for it. If we’re caught on the back foot, so to speak, then we’re going to be in trouble because we haven’t prepared for that possibility. And we’re going to be caught short, and then we’re not going to be able to do the best for the client. So it’s important that clients tell us everything upfront, trust that we know what to do with the information, and we’ll be able to work out some sort of solution.

Leanne Abela:
Do you find often, Joe, clients come to you saying, gee, I thought I had to wait 12 months before I engaged a lawyer. It’s much more complicated, isn’t it? The longer people take.

Joe Schepis:
Definitely. I mean, the one thing that I recommend to everybody is go and see a lawyer as soon as you can, once the relationship is falling apart. Sometimes clients come to see me before they’re separated. I think that that’s probably the best because they can get an idea of what’s going to happen after we separate, and they can start preparing themselves about who’s going to live where, for the children.

Leanne Abela:
It takes the fear out of it, doesn’t it? It takes the guessing work out of it for them.

Joe Schepis:
What am I going to do with bank accounts? All that sort of stuff can be preplanned and then the client could be forewarned about those sort of things. So timely action is critical. Take action as soon as you can, because once you’ve left for two or three years, going back to find documents is sort of, it’s a mess, and expensive.

Leanne Abela:
Oh, it’s a mess. Isn’t it? It’s complicated because lives change. Bank accounts change. The cars have changed. It becomes much more complex. And we both have clients that come to see us because they’re thinking about separating. That’s fine. We don’t mind.

Joe Schepis:
That’s probably the best.

Leanne Abela:
That’s probably the best. We just sit and listen. We can’t crystal ball, but if you were to separate around now, this is what’s likely to happen. If you come back in two or three years, this is what’s likely to happen. So that’s a free appointment. It’s really useful for people. So as soon as you can, get some free legal advice from an experienced family lawyer.

Joe Schepis:
And here at Pearsons, you can make contact with us on 1300 3… I forgot the number.

Leanne Abela:
1300 699 688, Joe. You must be having a moment. Are you?

Joe Schepis:
I’m having one.

Leanne Abela:
You’re having one of those moments.

Joe Schepis:
It is Monday morning.

Leanne Abela:
It is Monday morning and it’s fairly early. So yeah, that’s our number. 1300 699 688. Because you’ll find that we’re really in a position to answer any of the questions you’ve got. Both Joe and I have 36 years experience each in the area of family law. And believe me, there are almost no situations that we have not come across. And in the event that there is a situation that we haven’t come across, fortunately, we have access to barristers and other people that we can readily ask questions of and obtain prompt answers to. So listen to the advice that your lawyer gives you, because that’s really important. It may not be, as we said, what you want to hear, but it is what you need to hear. And make sure you have a good relationship with your lawyer, that you feel comfortable and you can communicate well with them.

Joe Schepis:
You make a connection. A connection where you can at least work together to try and work out a solution to your case as quickly as you can. And be completely open and transparent with your lawyer.

Leanne Abela:
So we hope those tips have been really useful. And if there’s anything else that you want to contact us about, please do so. Anything to do with family law. Thank you.

Joe Schepis:
Thank you.

Pearsons Family Lawyers

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