VIC Financial settlement negotiations

[GlassHalfFull]

Got a quick question to run by the punters here... This isn't for me, it's for a friend. She recently divorced from her ex - they were married about 5 years, no significant assets, no house, they were renting in a shared house. She wouldn't have more than about $5k in assets to her name, not even a car. He has a car and a slightly higher income than her.

Recently, her ex hired a lawyer and sent her a letter asking for financial disclosure. It seems there is some futility in pursuing her when the asset pool is virtually zero (there would be some super, but lets assume it's roughly similar, and if anything he earned more than her in the period they were together), she would prefer for them to just call it even and walk away, but it seems he wants to play hard ball.

My question is this... Is it likely to be worse for her to self represent and simply write back to the lawyer stating that she has no significant assets worth fighting for and that she would be more than happy to sign anything necessary to finalise a settlement with no compensation to either party?

She's not particularly legally literate and I don't think she would want to go too deep in self-representation, but it seems to me like until such times as he really commits to filing for a property case in court, he's just blowing hot air. Would there actually be any major downside to ignoring the request for financial disclosure at this time and see what could be negotiated instead? Would doing so be frowned upon or be cause for costs to be paid, once things got to court?

 

[Atticus]

Would there actually be any major downside to ignoring the request for financial disclosure at this time and see what could be negotiated instead? Would doing so be frowned upon or be cause for costs to be paid, once things got to court?

Certainly doesn't have to send in any financials at this stage .... Are they on speaking terms? if so, she should just arrange mediation to discuss it & see what he thinks there is to split as a starting point

 

[GlassHalfFull]

No, there's an IVO against him because (among other things) he was harassing her to sign a financial settlement that he put together himself (prior to engaging a lawyer), which was full of inappropriate and personal things that she didn't agree with. She was willing from the start to sign appropriate paperwork that would effectively finalise their separation, with no claim from either side, and that appeared to be what he originally wanted too, as he may have been scared that she would later try to make a claim on HIS assets. She had no intention of doing that and just wanted nothing to do with him, but that was evidently his fear at the time. However, he pushed too hard and got himself an IVO and now he's pushing instead with a lawyer.

At what stage would she be obliged to send financials? Only when a case is formally filed in court? Would there be any potential for him to claim costs if she ignored requests prior to it being filed?

 

[Rod]

Only when a case is formally filed in court?

Yes.

Would there be any potential for him to claim costs if she ignored requests prior to it being filed?

No.

I suspect her ex's lawyer is not going to care if she sends a letter saying she has nothing. His lawyer probably already knows this.

With little or no assets she can try to handle a lot of this herself, really depends on the person. Some people give it a go, others are not capable of doing, some are too frightened.

I'd have thought you would be giving pointers.

 

[GlassHalfFull]

I am giving pointers, and am encouraging her to represent herself for now because I am confident he isn't going to file in court given there's nothing of worth, and is just trying to pressure/bully her into something (at this stage I don't know what). I just wasn't sure precisely what the process was going to be.

I've been on the other side of this coin, where my ex has taken out an IVO on me and kept everything we possessed as a couple, and I've been left wondering how best to attempt to claim a reasonable settlement (it appears impossible, frankly, without spending more money on lawyers than the asset pool is worth).

Out of interest though Rod, I'd like your opinion here about my situation. If I were to self-represent and take a claim for financial settlement to the FCC, what would the costs incurred actually be? I mean, I understand there's an initiating court filing fee. But my understanding is that there wouldn't be any other significant costs unless I were to be wasting everyone's time with a claim that was outrageous... My lawyer (representing me about parenting matters, the more important issue for me) has advised me not to bother (even self-representing), because my ex has majority care of the 2 children and therefore our asset pool would be virtually all hers (Let's say ballpark figure of $20k in assets + 100k in super, she has the higher income and most of the super). I know you can't provide proper legal advice without having access to all the facts and figures, but hypothetically, could I hope to get 30%? 20%? Even if I were to get 20% of the $20k in assets and the super was ignored, which appears to be a ridiculously unfair split to me, it seems like it would be worth taking to court as a self-represented applicant? What's the catch, other than spending a lot of mental energy on self-representation?

 

[sammy01]

What's the catch, other than spending a lot of mental energy on self-representation? Yep. That is a big one.
$120 000 in assets? mostly in her super? btw glass half full, how long were you married? Let me assume 7 yrs? So reasonable to assume the majority of her super came from prior to marriage? as such should be quarantined from the equation to a certain extent? Seems to me a bucket load of work and stress for a couple of grand which in all likelyhood would be a super split, so you couldn't access the $$$ until you're 70.

 

[GlassHalfFull]

Yeah, that's the thing. I recognise that in terms of cost-benefit analysis, it might not seem to be worth it. But it's partially the principle of the matter: she is being selfish and nasty in trying to keep our joint assets all for herself, and it's fairly representative of how she has been with parenting matters too, and I feel like if I keep letting her have her way and dictating what I'm entitled to in terms of a financial split and time with the children, it's setting a precedent that it's okay, and that there's nothing morally wrong with acting that way.

I hope that it wouldn't come to it (for the sake of our children), but if it does, I hope that she's put in a position where she has to spend more money on lawyers than she gets to keep in assets. That might actually result in some kind of fair result for me (if I self-represent and don't spend anything on lawyers obviously), because even if i get to keep just 20% of the asset pool, I keep 20% without having to spend much, and she gets to keep 80%, but spends more than my 20% in legal fees. It starts to seem more reasonable to make a fair offer to me without going to court, that way.

That's my thinking anyway.

 

[Rod]

But my understanding is that there wouldn't be any other significant costs unless I were to be wasting everyone's time with a claim that was outrageous...

Correct.

Time and stress the only real issues.

Some people though see it as a challenge to get something rather than walk away with nothing and relish the effort.

I'd give it a go, but that is me speaking at a personal level.

 

[sammy01]

go make a nice cuppa tea.
We all agree, time and stress.
So where I disagree with you glass half full is that you're having a bit of a glass half empty mentality. Go with me.

Sure it will cost her $$$. Money that to some extent would be spent on your kids. The stress. Time spent preparing for, worrrying about and going to court is emotional energy that she isn't spending on loving the kids. I know I'm soft.

Also the soon you put this stuff to bed the sooner you can both move on. Mate my ex started to behave a little bit more like a human being about 18 months after the dust had settled and we had final orders for kids and assets. Nope probably 2-1/2 years, when the fight was done over assets she fought about child support for another year or two... But eventually s**t settled down and I was in a better place, so much so I was prepared to acknowledge that maybe not all women are pure evil and as such I could give dating an other go and my mental health improved heaps.

My advice - put in the application. Make a very conservative offer BUT the reality of court might be enough bluff to get her to play nice.

 

[GlassHalfFull]

go make a nice cuppa tea.
We all agree, time and stress.
So where I disagree with you glass half full is that you're having a bit of a glass half empty mentality. Go with me.

Sure it will cost her $$$. Money that to some extent would be spent on your kids. The stress. Time spent preparing for, worrrying about and going to court is emotional energy that she isn't spending on loving the kids. I know I'm soft.

Also the soon you put this stuff to bed the sooner you can both move on. Mate my ex started to behave a little bit more like a human being about 18 months after the dust had settled and we had final orders for kids and assets. Nope probably 2-1/2 years, when the fight was done over assets she fought about child support for another year or two... But eventually s**t settled down and I was in a better place, so much so I was prepared to acknowledge that maybe not all women are pure evil and as such I could give dating an other go and my mental health improved heaps.

My advice - put in the application. Make a very conservative offer BUT the reality of court might be enough bluff to get her to play nice.

But one extra piece of the puzzle that you need to understand Sammy is that I've been unemployed for 2 years. Prior to that, I was primary carer of our kids for 2 years. She earns $100k+ a year. The small asset pool we had together is worth a lot to me, it's effectively my life savings tied up in assets like a car and furniture.

I certainly don't think all women are pure evil, I've seen evidence of really kind, reasonable, child-focused women here and elsewhere in the big wide world. I'm now re-partnered with one who is pretty fantastic. I just think that *my ex* is pretty evil, and doesn't deserve to walk away with everything in circumstances where she shafted me so thoroughly (false accusations to take primary care or the children, forcing me to spend $50k+ in legal bills to claw back into the children's lives etc). I know justice is rare in family law, but I feel like some justice can still be achieved through some strategic decisions. Agree that it does have an effect on mental health though, but my ex and I still have another 16 years to deal with each other (youngest is 2). I need her to know that I'm not going anywhere and that I'm going to stand up for myself, so why not just meet me in the middle and be reasonable and save us both some stress...? Sometimes short term stress equals long term relaxation. Maybe this isn't one of those situations though. Hard to know without the benefit of hindsight!