Poor Behaviour and Divorce Property Settlement

In "The effect of conduct on divorce settlements" (John Bolch, Marilyn Stowe Blog) the family lawyer blogger consider the question whether a person's conduct can have an effect upon a divorce property settlement. When considering the question or poor behaviour and divorce property settlements, the family law commentators notes:

• there are common misconceptions about the relevance of conduct to divorce settlements
• in most situations past behaviour of a spouse does not have an impact on a divorce property settlement (i.e. the person behaving badly does not get a smaller financial settlement) 
• the court can take into account behaviour when deciding the divorce property settlement, but only if the alleged conduct very serious and it would be unfair for the court to disregard it
• there is personal misconduct (e.g. adultery) and financial misconduct
• personal is the most common, but also very rarely has any impact on the settlement 
• situations where there court has taken into account personal misconduct include wife shooting her husband and a husband committing incest
• financial misconduct occurs where one party recklessly or purposely dissipates assets and includes gambling and reckless expenditure
• where financial misconduct is found, the court will try to rectify the situation by ‘adding back’ the money or assets that have been dissipated
• poor court conduct (e.g. failing to cooperate) is not usually penalised by a lower settlement, but that party may be required to pay a contribution towards the other person's costs. 

Children's Wishes During Divorce

In "Ten tips in dealing with the children's voice in divorce and separation" (Family Law in Partnership, Jul 19 2013) the family law specialists express that children's opinions are valuable during divorce or family separation. According to the Family Law in Partnership, it's important to:

• consider children's comments in the context of their age and their emotional state, ensuring not to over-state a child's intellect or sensitivity
• consider that children may attempt to please both parents, offering different wishes and comments depending on who they are speaking to
• take great care when asking children to express an opinion
• never interrogate children for information about the other parent
• listen when your children want to discuss matters spontaneously 
• resist using conversations with children as 'proof' of the other parent's shortcomings
• acknowledge any anxiety or disappointment expressed 
• consider using a qualified mediator to find ways to work together in the children's best interests
• consider whether your children use open social media platforms 
• never criticise or blame the other parent in front of the children.

For more information, see: www.familylawportal.com.au or contact a Divorce Lawyer. 

How Much Child Contact After Divorce is Normal

In "How much contact is ‘normal’?" (Cambridge Family Law Practice, Aug 8, 2012) the family lawyers discuss often asked questions regarding the amount of contact a parent should have with their children when no longer living with them full-time. According to specialist family lawyers:

• questions regarding child contact is asked by both the parents moving out and the parents who remains with the children
• many primary-caring parents want to ensure that the children retain a close relationship with the other parent, but seek guidance on other people's arrangements 
• important to recognise that every family is unique and there is no such things as “normal”
• children are often the most important factor in divorce or separation
• the feeling of guilt and a sense of having abandoned the children can be overwhelming
• rational thinking can be hard to come by due to of the levels of emotion
• both parents must do their best to focus on what is right for the children
• both parents must put their own needs for validation or security to one side
• children’s best interests dictate any order that a court would impose, with the court looking at all of the circumstances of the case to establish what routine would be best for the children
• as a basic starting point, the court considers it almost always in the best interests of the children to have a continuing relationship with both parents after separation
• post-separation arrangements must consider the realities of school, childcare, work obligations, sports/hobbies, etc the logistical complexities this creates
• the most common outcome from the court is a ruling that the children will live primarily with one parent and spend time with the parent during set times
• the amount of time depends on many factors, including the age of the children 
• it is also possible for there to be “shared residence” where the children’s time is still divided between the parents
• in the UK, the terms “residence” and “contact” have replaced “child custody” and “access” and will become “child arrangements order” in order to encourage more creative thinking about what arrangements are in children’s best interests
• matters relating to children on separation depend overwhelmingly on the circumstances of the particular family. 

Divorce Settlements and Family Business Owners

In "Divorce: Top Tips for Business Owners" (huddled.co.uk, 3 Feb 2013) a leading family lawyer (Chris Longbottom of Aaron & Partners LLP) offers a number of practical tips for those with businesses and going through divorce. According to Chris, it's recommended you:

• Do not take any hasty actions 
• Meet your family lawyer as possible to discuss your options, required documentation and information regarding the business, and the need for ‘full and frank’ disclosure.  
• Assess (with your family lawyers and accountant) your liquidity and funding options for business continuation and potential settlement. 
• Seek an honest valuation from valuation experts and do not try and game decisions with a low valuation, as this would be counter-productive should there be no other option but to sell the business.
• Note that the Courts usually have a preference to keep the business as an on-going concern
• Consider the legal status of your partner (e.g. director, shareholder, etc) and plan whether those roles can continue to enable the business to remain in successful operation. 
• Consider employment law issues that may arise from a disorderly exit from the business. 
• You may wish to discuss how a spouse can be safely removed from the role that they have undertaken to date. 
• Consider the advantages of having your former spouse remain as a minority shareholder.
• Seek independent advice as to whether your existing shareholders agreement covers a scenario where a fellow shareholder is about to get divorced. 
• Consider a post-nuptial agreement.