HOW DO YOU SEPARATE?

Chapter Summary

In this chapter, we aim to guide you through the process of the initial separation and show you how to commence discussions with your former partner to resolve all the issues arising from a relationship breakdown. The lessons to be discussed in this chapter are as follows:

Lesson 1 — Identify and Open Up to Your Support Network at the Start of the Separation Process

Lesson 2 — Start the Process by Notifying Your Former Partner That the Relationship Is Over

Lesson 3 — Carefully Work Out Your Post-Separation Living Arrangements with Your Support Network and Financial Advisor

Lesson 4 — Tailor Your Negotiation Approach to Your Former Partner's Emotional Status

Lesson 5 — Act Quickly to Protect Yourself if Faced with the Risk of Violence, and Act to Mitigate Your Risk of Being Falsely Accused of Violence

Taking the Leap

People often meet with a lawyer for the first time some months prior to their engaging that lawyer to assist them through a family law dispute. Why is there this gap? The main reason is that the decision to separate from one's partner can be an extremely difficult one with a myriad of consequences. No one takes the decision to separate lightly. In fact, the decision is quite often the culmination of months (or years) of forethought and planning. There are many things to consider and there are many things to plan, both of which we explore in this chapter.

In any scenario, making the decision to separate is a big one, and it is forever life-altering (albeit often positive). The decision to separate is akin to "taking a leap," as it requires bravery and a commitment to throw oneself into the unknown. There is no guarantee of anything. There is no safety net. You are taking a chance that your life is going to be better as a result of this dramatic life move. There are many facets of separation that need to be considered prior to taking that leap, and we have set them out in this chapter.

LESSON 1

Identify and Open Up to Your Support Network at the Start of the Separation Process

The Importance of Emotional Support

When you are starting the process of ending a relationship, one of the key factors at play is the support of loved ones and professionals. When pursuing separation, people tend to think of themselves as being isolated. They often excommunicate themselves from social groups and lose joint friendships enjoyed during the relationship. This is the opposite of what should occur. The period of separation is truly a time in which the person on the journey should reach out to, and remain connected and engaged with, the people in his or her life. While separation can be burdensome in many ways, the burden on newly separated people is substantially reduced when they have trusted people they can speak to. Great examples of personal supports can be loved ones such as adult children, siblings, parents, friends, and even a new life partner. These familial and friend-based supports can be used to discuss the problems you are facing, provide you with informal advice, and just get your mind off things for a while.

In addition to the informal support family and friends can offer in an especially emotionally gruelling break up, you can seek out professional support to help you cope. Some examples of professional supporters are counsellors, life coaches, mentors, religious leaders, and mental health professionals, such as psychologists and psychiatrists. There can be great value to a person seeking professional support while dealing with a family relationship crisis. Lawyers are often the first professionals approached for advice, but they are not the best professionals to assist clients with the emotional and mental health aspects of their personal lives; it is simply not what lawyers are trained to do. A good lawyer will, however, identify issues and refer a client to appropriate trusted professionals who can provide mental health and/or emotional support services. In addition, it is important to know that in our social media age, there is a multitude of online support available for the newly separated, covering issues such as parenting, managing your emotions, and moving on. Before you take the first step towards implementing a separation, we recommend that you consolidate and understand your support network so that it is available when you will need to rely on it. Without that support in place, you risk an overpowering sense of isolation, which can (at best) undermine your attempts to end the relationship or (at worst), put you in a position where your ability to negotiate a sensible end to the relationship is compromised. Such a compromise can produce serious disadvantage on an emotional or a financial level.

Example: Bill and Mary had been together for thirty years. Bill was a narcissist who was totally controlling throughout the relationship. Mary, who was sixty and hadn't been in the workforce for twenty years, wanted 50 per cent of their total assets. Bill didn't use a lawyer and was not giving an inch. Bill argued over everything, so Mary's legal costs were escalating. Bill believed Mary's contribution was worth only 30 per cent of the assets. Mary knew she would get 50 per cent if she went to court, but she was emotionally drained. She felt alone and worn down and just wanted out, so she accepted 30 per cent of their assets.

LESSON 2

Start the Process by Notifying Your Former Partner That the Relationship Is Over

What Is a Legal Separation?

There is a common misconception that separation is a formal process that has to be legally documented before it is valid. In reality, separation is a question of fact. If you ask yourself if you consider your relationship to be over and the answer is yes, then you are probably separated. That means you can be separated from your partner and still be living in the same house, still be sharing the responsibilities for children, and still be sharing expenses such as mortgage repayments and council rates. If you consider your relationship to have ended, you should communicate that clearly to your former partner at the outset.

Of course, there are many situations in which telling your former partner that you regard your relationship as being over is very difficult. There could be a risk of physical or emotional violence. In those circumstances, communicating the end of the relationship to your partner needs to be carefully managed in conjunction with your support network. Options for letting your former partner know of your view may include relocating away from the house before announcing your intention, announcing your intention in the presence of members of your support network, or asking your partner to leave the house while you consider your future (what is known as a trial separation).

LESSON 3

Carefully Work Out Your Post-Separation Living Arrangements with Your Support Network and Financial Advisor

Will You Be Disadvantaged if You Leave Your Home?

Many people believe that by leaving their home during separation, they risk suffering a legal disadvantage. Namely, they feel that by leaving the house, they are giving up their legal interest in the home or their parenting rights to the children (if the children continue to reside within the home). In reality, you will normally not be legally disadvantaged if you choose to leave your home and relocate (e.g., move in with your parents). Often, this option is the far more manageable, sensible, and amicable alternative to continuing to cohabit with your partner. There are, however, a number of practical matters to be considered before you decide to move out of the home.

If You Stay in the House

• Can you live as a separated person with your former partner under the same roof, given the emotional stress that such an arrangement can involve?

• What rules need to be agreed upon if you and your former partner are to live as separated under the same roof? These include rules covering arrangements for the children (collections from school, delivery to extracurricular activities, informing them of the separation), contributions to household expenses (including mortgage repayments), undertaking household chores, civil communication between the parties, and the timing for one of you eventually moving out.

If You Leave the House

• Will you be taking the children with you?

• What will your supervision arrangements be for the children when they are with you?

• Where will you live?

• Can you afford new accommodation (rent, bond, moving expenses, furniture)?

• Can you afford living expenses?

• Are you entitled to pension benefits, child support, or spouse maintenance?

• Do you have relatives who can provide short-term financial assistance?

• Are you able to find employment?

Example: Kevin leaves Amanda in their home and takes the two children under ten with him. Amanda would not allow Kevin to take the children's bedroom furniture. Kevin rents a two-bedroom unit. Without telling Amanda, Kevin draws down on their mortgage redraw facility to fund the rental bond and the purchase of furniture and white goods. With the help of a friend, Kevin arranges to move the children's furniture from the house while Mary is at work.

If you leave your home with the children, or if you leave and have no children, then it is likely that your former partner will become solely responsible for the ongoing costs of maintaining the home (mortgage, rates, insurance, etc.) because he or she will have the benefit of sole occupation of that home. If you have children and leave the home by yourself (where the children remain in the home with your former partner), you may have to contribute to the cost of maintaining the home (mortgage, rates, insurance, etc.). Your obligation to contribute will depend largely on the comparative financial position of you and your former partner. As part of your separation planning, you should consult with a financial advisor to see what the financial impact of your relocation from the house will be and whether it is a financially viable option for you.

LESSON 4

Tailor Your Negotiation Approach to Your Former Partner's Emotional Status

Where Are You, and Where Is Your Former Partner, Situated in the Separation Process?

The Emotional Journey

One of the questions that we hear most often as family law lawyers is, "How do you deal with the emotions of your cases on a daily basis?" That is a good question, one that we will address in this chapter and often throughout Watkins Tapsell's Guide to Separation and Family Law. Emotions are part and parcel of family law, and it is impossible to disassociate them from your involvement in a relationship breakdown. It is not an understatement to say that a person going through separation, and the consequences that flow from it, is quite likely going through one of the worst periods of his or her life.

When we consider what happens in a separation, it is not hard to understand why it is so emotionally hard on people. Their once loving relationship has ended, which in fact can bring about significant feelings of personal failure. They are each about to lose ownership of a significant portion of their acquired wealth. Whenever an interest in 100 per cent of anything is being cut down, it can be a difficult pill to swallow. They are losing time with their children, because separated parents cannot spend the same amount of time with their children when the children are divided between two households. The former couple's vision of their future has been irreparably changed; where there was once a vision of an intact family unit sharing travels and heading into retirement, there is now uncertainty. Uncertainty breeds fear, and fear can manifest itself as negative emotions, which carry over into the family law dispute. On a lesser scale, separated couples are losing mutual friends, valued possessions, and even access to family pets (it seems low on the priority list next to everything else, but we have seen situations where custody of the family dog became a significant issue!).

What is the emotional journey to which we refer? Emotional journey is a phrase we use to describe the process that starts when a person considers that his or her relationship may be ending and generally concludes when that person has completed the legal process associated with the separation, accepted the end of the relationship, and moved on with his or her life. (This is not always the end point, because for some, the emotional journey can continue for a much longer period, for example, when there are ongoing parenting issues.) Your lawyer must understand this emotional minefield, as the lawyer's ability to understand an individual's emotions, and to understand how they impact the family law negotiations, is essential to bringing about a sensible early resolution. While lawyers are generally not trained psychologists, a good lawyer can empathise with, and potentially redirect, the client's emotions in a way that promotes an effective resolution.

Your Relative Positions on the Emotional Journey

A key issue for any person to understand before he or she can effectively commence negotiations with his or her former partner is the relative position of each party on the emotional journey. Each person's emotional journey is different. Some relationships end in a sudden, cataclysmic, and epic meltdown. In this case, emotions are raw and fresh, and often the end of the relationship is brought about by mistrust or infidelity. Believe it or not, these kinds of cases are (thankfully) the exception and not the rule. The far more common scenario is that the relationship has undergone a long, slow death. Sometimes the parties have stayed together for many years in a bad relationship because they have not had the means or ability to end it or they were merely maintaining their relationship for the benefit of children. These kinds of separations are far more common. Most cases of separation that we encounter fall somewhere between "sudden, cataclysmic, and epic meltdown" and "long, slow death." Each type of separation will highlight different aspects of the emotional journey.

It is very rarely the case that both parties to a separation are at the same stage of that emotional journey. Usually, one partner is the catalyst for the separation and the progression of the dispute towards a final resolution. For the purposes of this exercise, we will call that person the initiator. The initiator will usually have contemplated and accepted that the relationship has ended some considerable time before notifying his or her partner. This can often result in a situation where the initiator has come to terms with the end of the relationship whereas the other party is, at the same time, taken by surprise and unable to believe or understand that the relationship is at risk. When two people are in such different emotional positions, it makes negotiations for a final resolution of issues very difficult. While the initiator will usually be ready and anxious to achieve a final resolution, and to move on with his or her life, the other party may not understand what is happening; believe that salvaging the relationship is possible; direct all of his or her efforts towards encouraging reconciliation rather than towards achieving a final resolution of the separation issues; avoid any commitment that carries with it a sense of finality; and refuse to accept sensible and commercial advice, because to do so would involve an acceptance of the end of the relationship. Often the other party is blindsided by the fact that the initiator has progressed so far with the intention to separate. The other party may have suspected that things were not good within the relationship but may have had no idea that things had gotten that bad. In this situation, the other party often feels surprised by the strong feelings of the initiator. That surprise is often coupled with feelings of hurt, betrayal, and failure on the part of the other party. The initiator, at this point, has come to terms emotionally with the separation and the failure of the relationship. This process, for the initiator, could have been months or years in the making. The initiator has had a head start on the emotional journey and is ready to negotiate and finalise a sensible commercial resolution to the relationship issues.

In circumstances such as this, it is often almost impossible to reach a sensible negotiated resolution quickly. This is because the other party needs to "catch up". This person's approach in the early stages of his or her own journey may lead to outbursts, ridiculous demands in negotiations, or delay tactics. This reflects that the person is, as yet, unable to come to terms with what is happening in his or her life. Most of the time, settlement cannot occur until both parties have reached the type of equilibrium that comes when there is at least some degree of joint acceptance that the relationship is irretrievable.