When participating in family law mediation, there are several important topics that you should discuss with the other party.Discussing all the issues that might arise, even the thorny ones, is important because it will help set expectations and boundaries and prevent disagreements in future. It’s best to have these conversations in a facilitated and outcome-focused environment, rather than waituntil a problem arises to try to work it out, when tensions and emotions may be high.
Family mediation lawyers play a vital role in this process, providing professional guidance and expertise in family law matters while helping parties navigate through sensitive discussions with empathy and understanding. Family law mediation offers a structured and proactive approach to address these matters, fostering a collaborative atmosphere that facilitates effective communication and mutually agreeable solutions.
This article delves into the essential topics that couples should address during the divorce mediation process, emphasising the benefits of proactive discussion and the advantages of finding resolutions in a supportive setting. By proactively engaging in these conversations, couples can pave the way for a more harmonious and stable future for all parties involved.
When discussing parenting arrangements, the devil is in the details.
In daily life, it’s the little things that often mean the most. While you might be able to readily agree on a high-level plan, working out all the intricacies can be tricky.Let’s say you and the other party agree that you will have the children for five nights every fortnight, and the other party will have the children for nine nights every fortnight. Are your five nights going to be doneconsecutively, or will they follow a fortnightly rotation, with a weekend in the first week and two nights in the second week?
Where is changeover going to happen? For young children, this might be done at home or at daycare. For school-age children, is public transport between home and school a viableoption?Is there room at school for the children to store the extra items they will need on changeover days, without it being a big issue or being embarrassing for them? Do the children have musical instruments or a large number of books they’ll need assistance with on changeover days?
What’s going to happen during school holidays, special occasions, and religious occasions? Are the children going to see both parties on each of their birthdays, or will there be a special arrangement?Who’s going to hold onto the children’s passports, and in what circumstances are the children allowed to travel overseas?
These questions are best answered sooner rather than later.
Children are expensive. The Child Support Agency (CSA) has a system for assessing what one parent should pay to the other parent based on the ages of the children, the incomes of the parents, and the way the parents share the care of the children.
During the mediation, you can discuss whether you would like the CSA to collect child support from one parent and pay it to the other, or whether you are happy to have direct payments between the two of you.You can also discuss whether the amount of the child support assessment is enough or too much in your unique circumstances and negotiate an arrangement based on other factors discussed at the mediation.
For example, a party who would normally be entitled to be paid child support under an assessment might agree not to receive child support on the basis that they get a higher percentage of the assets than they otherwise might receive in the property settlement.Alternatively, one party might prefer to receive a higher ongoing payment in return for receiving a lower percentage of assets or in return for taking more superannuation and less cash.
You should also consider whether you want to formalise the future financial arrangements for the children in a binding child support agreement or whether you’re happy with an informal arrangement.There are rules that apply to binding child support agreements (including that you receive independent legal advice), so if you’re looking to formalise child support arrangements, you should speak to a specialised family lawyer.
If you would like more information in relation to child support, please see our blog on child support in Australia.
How are you going to communicate with each other about matters that affect the children? This can look very different from one situation to another and often depends on whether the communication is about simple day-to-day matters or matters of long-term significance.
Options for communication include text messages, emails, phone calls, or face-to-face meetings. There are also special parenting apps which you can use to communicate, some of which will even suggest more amicable wording for your messages to help prevent conflicts.
Undergoing a Parenting After Separation course is a great way to learn about communication styles and how to monitor your own communications, for the sake of your children.
Division of assets
I assume here that you’ve fully prepared for your mediation, exchanged all the necessary disclosures, and have an agreed (or largely agreed) balance sheet that correctly represents the assets and liabilities of both parties. For guidance on how to prepare for a mediation, please see our blog on this topic how to prepare for family mediation.
How you divide your assets will be based on a number of factors, such as what assets you each brought to the relationship, the length of your relationship, your respective financial and non-financial contributions during the relationship, whether you have children, whether you received any significant gifts during or after the relationship, the future earning capacity of both parties, and future care of the children. Those factors should be outlined in a position paper or case outline sent to your mediatorahead of the mediation.
Our approach to conducting marriage separation mediations is evaluative. In other words, we actively apply our legal expertise to provide parties with an independent evaluation of the likelihood of achieving certain outcomes in their situation.Other mediators take a facilitative approach, where they set the process for the parties to engage in a negotiation, but they do not make recommendations or take a firm view as to whether an agreed outcome would be achievable in Court.
Once you’ve agreed on a percentage split, you need to work out how this will happen. This might require selling a property or one party giving some superannuation to the other. If your agreement does include a change in superannuation entitlements, you will need a legallybinding document with specific wording to have your fund process the roll-out.
Where one party has been financially dependent on the other party for some time, it may be necessary for maintenance payments to be made temporarily or on an ongoing basis to ensure that both parties are able to meet their day-to-day needs. For example, if one party has a health issue that prevents them from working and causesthem to have high out-of-pocket medical expenses, you might consider how those expenses will be met in the short and long term.
Too many parties forget to think about the possible taxation implications of their proposed agreement. You should discuss the tax implications of every aspect of your agreement, in consultation with your accountant or tax lawyer, to ensure that one party (or both) won’t get hit with anunexpected tax bill.Consider all types of tax, including income, capital gains, and land tax.
Document agreements and decisions
In all matters, you should discuss how you are going to document things.Some parties are happy with an informal agreement written on a piece of paper.In some circumstances, it’s necessary to have formal agreements, such as parenting plans, consent orders, binding financial agreements, binding child support agreements, and deeds of release. Your mediator should be able to help you identify your options and refer you to a qualified family lawyer for further assistance, if necessary.
Divorce mediation empowers couples to make important decisions amicably, fostering a healthier post-divorce future. By prioritising open communication and cooperation, both parties can reach agreements that prioritise everyone’s well-being. Embrace this opportunity to shape a respectful path forward and build a positive foundation for your new beginnings.