Following separation, it can often be difficult to determine whether you and your Ex can get an agreement between you, how to have settlement discussions and when to get support from a lawyer or mediator. Sometimes, you may be able to have discussions about what you both want and come to an agreement and sometimes, this just isn’t possible for a range of reasons.
A lot of the people we work with try to have some discussions with their Ex about the financial and parenting arrangements and are able to come up with a plan for the short-term, but need a little help fine tuning what will happen in the medium and long-term. This is completely ok and like any negotiations, it’s when you get to the finer details and have to do some forward planning that a lot of “if’s, maybes and buts” come up.
In this post, we go through how to have direct settlement discussions with your Ex and how to recognise when you might need some support with those discussions.
Unfortunately, it is common for clients to come to us believing that they are amicable and in agreement with their Ex and it comes to light that they aren’t actually in agreement as things progress. There are many reasons why this happens but there are always pathways to move forward whether you and your Ex are in agreement or not.
Where do I start?
Like with any negotiation in life, before you can start having a conversation with the other party, you need to get clear on your objectives for that conversation and in particular, what outcome are you trying to achieve.
Before you do anything else, think about these questions:
Once you have a clearer picture on your objectives, think about what your Ex’s objectives may be and why those are important to him or her. This is a really important step as it gives you perspective and it also kickstarts you thinking about what compromises you may need to make during the discussions.
How to have direct negotiations with your Ex?
If you and your Ex are on talking terms and are able to have open discussions, you can try to discuss your short, medium and long-term goals in person or by email. There is no one way for these discussions to happen, but most people don’t feel entirely comfortable having them face to face because they are concerned about emotional reactions or flair-ups. Be aware of how you and your Ex may be feeling and select a method for the discussions that will work as best as possible for both of you.
If you are meeting face to face, have some notes and dot points around your above responses and proposal to help guide your conversation.
If you are emailing your Ex, ensure that your email clearly sets out your proposal and why you believe it’s important or the best way forward, without using emotional language, by keeping it polite, flexible and informative.
Don’t get into discussing the reasons for the break down of the relationship, the emotional hurt or pain or use blaming language. While these are things you may want to say, the space to do that is not during a negotiation as it will be counterproductive and put an end to meaningful discussions that get a resolution.
Be mindful that you may not get an answer straight away and that the other person may need to digest what you have proposed before coming back to you. Provide a timeframe for a response that provides at least 7 days.
If you reach an agreement, work out whether you have an overarching agreement that may need some fine tuning around the specifics or details, or whether you have a full agreement. If you have an overarching agreement and need help with the specifics, communicate this to your Ex so they can expect some further discussions around the finer details to make the agreement clear between you.
If you get to a point where you and your Ex are roadblocked, it is a good time to get some legal advice to understand your options and to help you work out a way to move through it to get a final agreement. We often have people coming to us that have been able to reach some parts of the agreement on their own and need our help with some of the issues they are struggling to resolve between them.
Formalising an agreement
Once you have an agreement, even if it is an overarching agreement, you can then formalise this by way of Consent Orders. Consent Orders detail the specific agreement between you and your Ex in relation to parenting, property and spousal maintenance. They are legally binding and enforceable documents that are lodged with the Court and once approved, they become sealed Court Orders. The benefit of Consent Orders is that neither party has to attend Court to formalise their agreement.
We can also formalise agreements for property and spousal maintenance through a Binding Financial Agreement. These documents are less common as they cannot provide for parenting arrangements and while they are binding on the parties, they are not immediately enforceable as it has not been approved by the Court. Because of these limitations, a Binding Financial Agreement is a more complex document and requires both parties to provide full disclosure of their financial circumstances and to obtain independent legal advice about the implications, advantages and disadvantages to each party before entering the agreement.
We love working with people to formalise the agreements they’ve worked hard to achieve. We will work with you to identify the best way to record your agreement, fine tune the specifics and will provide you with a fixed fee for that work.
We can also help you to work out what kind of proposal you want to put to your Ex and assist you to have your own direct discussions and negotiations. Approximately 30% of our clients start working with us in this way as it gives them clarity on what outcome they want to achieve and gives them confidence and the tools to have those discussions in the hope of reaching their own agreement. We often only get involved to formalise the agreement, or to help if there is a roadblock.
We offer a FREE CLARITY CALL where you can discuss your situation with us and we can provide you with a pathway and strategy to move toward a resolution with clarity, certainty and confidence.
***Disclaimer***
This article is for general information purposes only and does not constitute legal advice or any other professional advice.
We are here to guide you out of the uncertainty of separation to financial certainty and freedom, to clear arrangements for your children and to the power and confidence you need to rebuild your life.
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