It is a myth that all separating couples need to hire the service of a lawyer – in fact, if you decide to go this route you will need two lawyers, as you need to hire one each.
The separation process can be done in a more amicable manner at less cost through a specialist separation accountant. And yes, we will get your orders approved by the family court – all without a lawyer bill in sight!
However, some cases, particularly those with safety issues or high conflict, need the intervention of family lawyers to reach a conclusion whereby by both parties and the children involved can establish a framework to move forward with their lives.
There are many good family lawyers around. A good family lawyer can best be described as one who puts your overall interests ahead of their own. Unfortunately, there are family lawyers who fail to act in the best interests of their clients resulting in huge legal fees, added stress and the lengthening of the financial settlement process.
It is recommended to use a family lawyer:
- When you need legal advice
- If you need a binding financial agreement
- When you have child custody issues that need to be dealt with by the court
- If you really want to take your separation through the courts, noting you need to go through a mediation process, before you can get in the long queue to see a judge (average wait time is 2 years to get to the first hearing).
If your separation has reached a point which you believe requires family lawyers, don’t panic. We suggest educating yourself around how they operate and what to expect. This way you will be prepared and empowered to make the right choices, and ultimately receive the expertise and support you need.
The below list suggests what to be wary of when using a family lawyer.
PROMISING YOU A CERTAIN OUTCOME
If your family lawyer promises you a particular outcome regarding your family law case, this is a big red flag. The simple fact is that no lawyer can do this.
Even if you do go to court, the judges do not produce consistent rulings. Although they are guided by the Family Law Act 1975, they will also take into consider the case of the other party and the unique needs to your family. Things may not go your way.
You lawyer may have the best of intentions, but they are unable to 100% predict the outcome of your case. If they suggest they can, think about using a different lawyer.
For more support see: Tips for a successful property settlement that your lawyer may not mention.
ENCOURAGING YOU TO HAVE YOUR DAY IN COURT
Don’t be fooled by the classic line from the movies: “I’ll see you in court”.
The fact is there are very few family court judges in Australia. For this reason, the chances of you getting your day in court is extremely slim. Even if you do, it will be a very expensive exercise. It is important to understand the costs (dollars and time) versus the potential incremental benefit from where you are now.
A good family lawyer will work hard to reach a settlement for you out of court. They will also recognise when court is a necessity and talk you through the very best way to approach it with focus on the outcome, alongside the financial and emotional toll.
Another warning sign that your family lawyer may not be working in your best interests is lots of correspondence between parties with limited progress.
Family lawyers love drafting lengthy letters, which can make you feel good, but do little to get any type of resolution.
The only thing worse than this is when the lawyer from the other side responds to only part of the lengthy request. This means there will be a constant stream of letters between the parties. This will be at your cost. Beware!
FOLLOWING YOUR INSTRUCTIONS
It likely that you have never had anything to do with family law in your life before this time. For this reason, you might request your family lawyer to do something which is not realistic or pragmatic.
The role of a lawyer is to encourage you to take a different approach, rather than going along with your request under the guise of acting under the instructions of the client.
Not only could this cause a disappointing result accompanied by a large bill, but the blame will be laid firmly on your doorstep, not with your family lawyer.
A LARGE UP-FRONT DEPOSIT
If you family lawyer requests a large deposit before they lift a finger to help you, be very careful. It will just be the start.
You only have to read through a legal contract of any kind to realise that lawyers speak another language! However, they shouldn’t do this with you, the client.
Using lots of tricks and complex terms which you have no hope of getting your head around is a tactic to disempower you. It can lead you to believe that you are so uneducated around family law that you need these lawyers help MORE THAN EVER.
If they cannot communicate with you in a manner that you understand and are comfortable with, then they are probably not right for you.
BEWARE THE “OTHER LAWYER”
What makes using lawyers even more challenging is that if you choose to go down the family lawyer road, in the vast majority of cases it results in the other party also engaging a family lawyer.
Even if you manage to engage a good family lawyer, there is no way of ensuring your ex has a good lawyer. All it takes is one bad lawyer to drag things out and run up the costs for both parties.
HONESTY ABOUT THE ROLE OF THE LAWYER
The reality is that lawyers are really overpaid administrators and the process for most family separations is mainly clerical.
The majority of what they do is making information requests, collating information provided and organising other experts, rather than providing any real value themselves.
Consider this when you decide if their prices are fair. If you feel they are not, look for another lawyer, or work directly with the expert you need for your family separation. For example, an accountant for your property settlement and/or a mediator for family disputes.
See this article on what you can do before engaging support of any kind: 10 Simple things to do when you first separate.