I want to settle, what is the process?
What is the first step?
If you instruct us to act for you, the first step is to write to the other side indicating that we act for you, that you want to settle the matter, and that certain information needs to be exchanged before that can happen.
Hopefully that person will take that letter and go and speak with a family law solicitor about the matter. We find that if the other side is also using a solicitor, then the matter is far more likely to settle.
If you want us to act for you we also need you to complete the instruction sheet form that we would have given you at the initial consultation, and return it to us, along with the documents that we have asked for, and payment of our first installment. We will then send you a draft letter to the other side, so that you can review it and let us know if it is correct, before we actually send it to the other side.
There will then hopefully be an exchange of letters, once sufficient information has been exchanged there will be settlement offers made, and we will advise you on any settlement offers that are made.
The process looks different for every matter, because no two matters are the same.
Sometimes our clients like to make a settlement offer in the initial letter to the other side, this may be appropriate in a children’s matter or custody matter, it generally isn’t appropriate in a financial or property matter as the exchange of financial information needs to occur first. Exchanging financial information is important firstly so that you know what assets are available to be divided, and secondly so that we can ensure that any settlement is binding and effective. If for instance there is some joint debt that we aren’t aware of until after settlement has been agreed or finalised, then you may have to start the whole process over again.
What happens once we settle?
If the matter can be settled then we could prepare a Financial Agreement, which is an out of Court deed, or an Application for Consent Orders which would be submitted to the Family Court.
We will discuss with you the difference between these two documents, and we will advise you which document is appropriate to your circumstances.
Once you are happy with that draft we will send it to the other side, or the other side’s legal representative.
The drafting of the documents themselves does not take a long time, what usually takes time at this end of the process is the negotiating about the terms, waiting for confirmation from both parties to process, and in the case of Consent Orders, waiting for the Court to seal and return the Orders.
How long will it take?
We often get asked by clients, how long will the settlement take. In our experience delays in family law matters are not caused by drafting documents or sending letters, but rather by the following:
- The time that it takes for both parties to collect all necessary financial information and give it to their lawyer, or to the other side
- The time that it takes for parties to respond to letters from their lawyer, or if they are self represented, the time it takes to respond to letters from the other side
- The time that it takes to reach actual agreement or settlement
- One party having an entrenched position and not participating in settlement negotiations in an effective manner
- Negotiations that proceed in an unhelpful and unproductive manner
Some of these delays you can work to reduce, and in relation to some of the delays you will either need to be patient, or listen to our advise that proceedings need to be commenced.
Most parties in a divorce aren’t used to responding to formal letters, making effective and time efficient decisions, and finding and producing relevant and timely information about their finances. Many people that we act for cannot find their most recent superannuation statement, or are not up to date on their tax returns. We therefore have no doubt that other solicitors also struggle with the same time delays so that even if you are very prompt in responding to all of our queries, the other side may not be as prompt as you.
The delays caused by finding documents are unfortunately unavoidable because, as set out in the brochures provided to you at our initial conference, exchange of accurate financial information is a crucial step in property
In relation to the issue of reaching actual agreement, we often find that parties think they have agreed when actually, they each think the other party has agreed to what they want, but what both parties want is different. Actually reaching agreement can take some time, even when parties think they have agreed, which is why it is important to confirm the agreement in writing by exchange of letters to ensure that both parties are on the same page.
We sometimes have clients who won’t accept our advise that the other side is not genuinely participating in settlement negotiations and litigation should be commenced.
Naturally, you are the client, if you instruct us to continue negotiations then that is fine but then, when proceedings need to be commenced, and the unhelpful situation has dragged on for six, nine or twelve months, the client can be in a worse position than they were when we first advised them to commence proceedings.
Sometimes clients object to how long it has taken, and the length of time (usually at least twelve months) between commencing proceedings in the Family Court and obtaining a final hearing date. We initially proceed in the hope that our client’s matters will settle. We are just raising that sometimes it is necessary to commence proceedings . We actually find that more often than not it is the matters where the parties should be able to settle, not the matters where there is a lot of animosity, that need to be litigated. In these more acrimonious matters, generally the parties are sick of fighting and want to move on from the divorce.
We find that the average matter that settles takes between three and six months, though this is dependant on the factors raised in this hand out.
COODE & CORRY SOLICITORS
Telephone: (02) 4731 5999
Facsimile: (02) 4731 3164
19 The Crescent,
Penrith NSW 2750