We’ve all heard the stories about exorbitant amounts of money being spent by spouses on legal fees arising from a family law dispute. Unfortunately these stories are not just limited to US celebrities.
Most of these stories either expressly blame the role the parties’ lawyers have played in the process or otherwise suggest that the sole or major motivation of the parties’ family lawyers is directed towards their own personal financial gain, rather than that of their clients.
I admit that, in some cases, such criticism is warranted. These lawyers are the scourge of our profession and seem not to consider or care about firstly, the impact this has on their client (both at the time and into the future) and secondly, the wider impact on the reputations of all family lawyers. There is little wonder the internet is full of jokes about lawyers, such as: “What do you call 10,000 lawyers at the bottom of the ocean? A good start. (Unless you are an environmentalist; then you would consider this indiscriminate dumping of hazardous waste.). or “Santa Claus, the tooth fairy, an honest lawyer and an old drunk are walking down the street together when they simultaneously spot a hundred dollar bill. Who gets it? The old drunk, of course; the other three are mythical creatures”
However, I like to think that, in the vast majority of cases, the primary goal that motivates most lawyers is getting a good outcome for their clients.
Sometimes, when your former spouse or partner is acting irrationally, is refusing to communicate or takes an entrenched position in relation to an important or significant issue, your options for how to resolve your matter may be limited. In reality, I think these circumstances are extremely limited. In most cases, you will always have a number of options and more control over the choices you make and the direction your matter takes than you think. And, as the client, the most important person in the matter, you should always ensure that you are in control of the direction your matter is taking and that you manage your legal fees.
Here are my top five tips for doing so:
1. Carry out a cost benefit analysis, or ask your lawyer to set one out for you, at each stage of your matter. There is no point, in a financial matter, in spending the same amount (or more) on legal fees to progress your matter than is in dispute between you and your former spouse.
2. Before instructing your family lawyer to commence litigation on your behalf, make sure you:
(a) Have fully explored all of the other avenues and alternatives to litigation. These include:
- Putting across your “best” offer at the same time as providing your spouse with all of the information and documents they need to consider that offer;
3. Arrange a round table conference with your former spouse and their legal representatives. Consider inviting the family or business accountant;
4. Consider appointing an independent expert to provide advice to both parties on a particular matter in dispute eg the current or future operation of the business;
5. Consider the different forms of alternate dispute resolution including collaboration, mediation and arbitration; and
- are fully aware of the costs involved in litigation, from start to finish, including filing fees, the number of Court attendances that may be necessary, the costs of any adjournments or delays;
- are aware of, and have considered the possible consequences of, the fact that once you are in the court system you no longer have control over the timing of your matter or the process that is undertaken. All this is subject to the Court’s finite resources and availability. In the 2012/2013 financial year:
– in the Family Court of Australia, there were 2,807 Applications for Final Orders and 3,380 Applications for Interim Orders; and
– in the Federal Circuit Court, there were 17,364 Applications for Final Orders and 20,242 Applications for Interim Orders.
One of the effects is that, a five minute mention of your matter may not be heard until very late in the day. In most cases, neither you nor your lawyer have any choice but to wait outside the Court room. Further, although the Court goes to great lengths to ensure that it is avoided, on occasion two trials may be set down for the same day, before the same Judge and your matter may not be the one being heard on that day. This is despite the fact that you have paid your Court fee, filed your Court material on time and paid your barrister to appear on your behalf.
When making any proposals, or considering any proposals, for property settlement make sure you:
1. Carry out or consider your lawyers cost benefit analysis (as set out above). How much are we apart in dollar terms? How much will it cost me in legal fees to proceed in my matter (eg what will be my legal costs to prepare for and attend say a private mediation?).
2. Consider the “cost” to you in spending time involved in a matrimonial dispute rather than spending that time in your work or business;
3. Acknowledge the emotional cost of continuing the dispute. You made the difficult decision to separate, allow yourself to be able to move on with your life.
4. Adopt a realistic and reasonable position, in the context of the limitations of what your lawyer, or the Court, can “fix” – Neither can change the behaviour of your spouse; neither can make your spouse acknowledge his or her role in the breakdown of your relationship; neither can declare you as the “winner” over your spouse; neither can make him or her a better parent.
5. Consider carefully the advice being provided by your lawyer. If unsure, ask questions about the legal and cost ramifications of taking one option over another. In light of the limitations of the Court (as set out above), consider the road of least resistance. Sometimes not doing something (ie not taking a particular step) is an option worth considering.