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Keeping the Temperature on Conflict Down

Samantha was angry. I knew this not just because she said it. I could see it exuding from her in the way she sat – jaw clenched, tears welling – to the way she spat the words out when she spoke of her ex, Jeff.

 

Jeff had decided to end their 14 year marriage and she was in emotional freefall, feeling completely blindsided and betrayed. And grieving.

This was the first time I had met Samantha. As we spoke, alarm bells were ringing for me, warning me that trying to resolve the range of issues bourne out of Samantha and Jeff’s separation could very easily turn nuclear.

Family law issues are not clean-cut, clinical, technical issues to resolve. They come with the full range of human emotions. Very often, they come with high drama. Most of the time, there is lots of grieving happening which can be manifested in anger and bad behaviour.

More often than not, one person has made the decision to separate some time ago and as such, has already travelled well along the emotional rollercoaster that comes with that decision. Meanwhile, their partner is playing emotional catchup, travelling on a later departing rollercoaster.

Often the parties’ emotional states render them unable to process information soundly and make settlement decisions. That is not a weakness or a frailty on their part. It is just neuroscience. Very easily the conflict levels can spiral to heights the parties never envisaged they could reach.

As anger and grief take seed and conflict grows, our perceptions become distorted. The story of the conflict becomes akin to a fairy story – complete with a villain, a hero and an innocent victim. Guess what role we rarely assign to ourselves? We start to view things consistently through the lens of our own story. We can easily slip into seeing others as being “for us” or “against us”.

With increasing emotion, our thinking gets cloudy and the neuroscience that is at play means we may become physically unable to make clear, rational decisions.

Our communication starts to deteriorate – we tend to communicate only with those that support our view; our story of the conflict. If we are speaking with our ex or those who don’t agree with us, we tend to do so with the goal of defeating them or changing their views and strengthening our own position rather than with the goal of understanding.

As all of this is happening, the key issues get blurry and unrelated issues and innocent bystanders start to get sucked into the vacuum of the conflict. As the issues become less defined, it becomes difficult to work out what it takes to resolve them.

We get locked into our positions, not wanting the other person to “win” or fearing losing face or looking badly if we back down. We become more and more committed to our positions, even if it makes little logical sense to maintain them.

How we view others changes. The differences between us seem to become larger and larger while the things we have in common appear, to our mind’s eye, smaller and smaller.

Add into all of this, lawyers with a litigious approach stepping in to write letters to assert your position, to demand “disclosure” and to “protect” you and quickly the temperature of the conflict rises. Threats of court get thrown around and, if Court proceedings eventuate,  you are thrust into a process that is largely out of your control and sees the conflict spiral spin faster.

Yes, things could very quickly turn nuclear for Samantha and Jeff. But, the good news is that things needn’t go that way. Your choice of lawyer and the process you choose can have a huge impact on whether your relationship is gently untied or harshly hacked through.

Lawyers who are trained in Collaborative Process (also called Collaborative Law) understand the interplay between their client’s emotional states, the actions they as lawyers take and the level of conflict. They are focused on mitigating conflict, not contributing to it. They have specific strategies to keep communication happening respectfully and to remove the inflammatory letters and threat of court from the resolution process. They are able to support parties to creatively problem solve to find solutions that wouldn’t be possible in more litigious approaches.

Having walked Samantha through all the processes available to her for resolving issues with Jeff, including Collaborative Practice, her relief was palpable. She still felt angry but understood this was a natural part of the grief process she was going through and that she would be supported as she went. Most importantly, she now knew there was a way to get through the separation without that grief and anger exploding into escalating levels of conflict.

The Collaborative Process is not an easy, soft option – there is no way of completely removing the emotion and the conflict felt by the participants. In one sense, it is almost necessary to feel that emotion in the same way that heat is necessary to making creme caramel. However, no one likes burned creme caramel! Using a lawyer trained in Collaborative Process means that, no matter which process you work through, he or she will always be looking for ways to find resolution and to assist you to avoid  being burned by unnecessarily inflamed conflict.

If you would like to explore how you can find a way to work through your separation without the drama, give us a call on (09) 297 2010.  

Guest Blog: Sam from Toughtalk

Last week I blogged about the work of Sam, a clinical psychologist and founder of Toughtalk. Toughtalk’s mission is to improve the mental health record in this country and one of the ways it does this is by breaking down the stigma around men talking about their feelings. Toughtalk has produced two seasons of videos of men doing just that – talking about life’s challenges and what has helped them. Just a warning – if you take a look at Toughtalk’s videos, before you know it, an afternoon will have passed and you will have worked your way through an entire season!

I am rapt that Sam agreed to provide a guest blog for my wee site – Thanks Sam!

 

8 Tips for Supporting a Mate

Men really want to talk, they just need the right environment, attitude, and questions to feel comfortable opening up.

So often people want to reach out to someone but don’t know how to start the conversation, hold a comfortable space, or know what to do when the conversation gets tough. All the tips I’m discussing are tailored for talking with men, but generally apply to women too, especially when a person identifies as being more masculine in nature. A major barrier to talking with men about their deepest challenges is our collective belief that men don’t want to communicate about how they’re feeling.

People always ask me:

“How do you find men willing to open up for your Tough Talk videos?”

The implication of this question seems to be that such men are a rare breed, yet this hasn’t been my experience at all. I regularly talk to men from a variety of backgrounds as I travel around New Zealand and many men leap at the opportunity to tell their stories.

Every so often I come across a man who could be described as “macho”. I find that as long as I use language they’re familiar with, ask open questions, remain respectful, and show a willingness to listen, then almost anyone will open up. The only exceptions have been when someone is really angry, anxious, sad, or simply not in the right mood to talk.

“If you think men don’t want to express their deep emotional pain, then you’re subtly feeding into “the hard man” attitude implicit in Kiwi culture.”

TIP #1: It’s easier for a mate to open up while doing an activity.

 

It can be intimidating for someone to open up in response to an invitation “to talk”. Their mind often goes to wondering what they’ve done wrong. It’s much easier for someone to accept an invitation to do an activity.

Conversations flow better when people are engaged in activity while speaking. For hundreds of years men have stood side by side in silence and companionship as they hunted, primarily using their eyes and body to communicate. Like hunting, other activities can provide a medium for communication. Having something to partially focus on makes tough conversations less intense and opens opportunities for nonverbal communication.

Here’s some one on one activities for you to consider: throwing a ball, walking, playing cards, fishing, building, crafts, running, gardening, shooting hoops, biking, and hunting…

TIP #2: Having the strength to share your own challenges makes it easier for a mate to talk.

 

A standout lesson from my journey has been that when I’m honest about my own insecurities and shed a tear, it supports others to do the same. Baring my soul seems to create a space where absolute honesty feels comfortable and safe. Often I don’t need to ask people any questions afterwards; people’s stories and emotions start flooding out.

If enough of us have the strength to be role models then there is potential for a ripple effect which could contribute to an improved culture of support. We start to see widespread social change when enough people are living according to a new social norm. Being honest about our internal struggles could become the normal thing!

TIP #3: A private space to talk one on one makes it easier for a mate to open up.

 

ISam tip 1t can be really off-putting when someone brings up a sensitive issue in front of a group of people. It’s hard enough to accept challenging issues within the privacy of our own mind, let alone have them broadcast to our peers without warning. It doesn’t matter if everyone can see what’s going on already, talking about it in a group without permission can bring on shame and embarrassment.

 “A person has a much higher chance of working through an issue if their first experience of talking about it is accompanied by feelings of support and acceptance”

Inviting someone into a private space for a one on one chat is a comfortable environment to talk within. There’s a lot you can do to create a tailored space for a tough conversation. For a start, make sure you have enough time to go deep (I recommend around 2 hours, but it fully depends on the situation), you could be doing an activity together (see Tip #1), you could provide some beverages and snacks (there’s something deeply comforting about sharing a meal), you could be playing suitable music in the background, and it may be appropriate to be situated in mutual territory, i.e. neither one of you has more power in the space, such as owning it.

It’s easier to talk when sitting next to someone, angled slightly towards them, but not directly facing them. It can feel more threatening when you’re sitting directly opposite each other. Ideally you won’t have anything in between you, like a table or desk as it creates a barrier to nonverbal communication. I’ve found that an ideal setting is in the outdoors, particularly by a fire, a body of water, or anywhere with a view.

TIP #4: Ask permission to talk and accept “no” for an answer.

 

It is really important to ensure someone is in the right space for a tough conversation. One approach is to invite the conversation through mentioning a relevant situation, e.g. “It must be hard not having your partner around anymore… Do you want to talk about it?” You could also try being more direct “I’ve noticed you’re going through a tough time, do you want to talk?” A useful follow up question is “what’s happening?”, rather than “what’s wrong?”

Sometimes the person won’t be in the right space to receive support. An opportunity for someone to express what they’re going through may be detrimental if they’re preoccupied by a strong emotion or mood, an immediate problem, a pressing task, or about to enter a situation where it isn’t safe to be emotionally vulnerable. Once you open something up it can take a while to close, so make sure you factor that into timing.

It is important that you respect when someone says “no”. Let them know you’re there for them when they’re ready to talk or make a date for the future.

There is also the possibility that you’re not the best person for them to talk to. If you think this is the case, you could ask someone else if they would be willing to support them instead. You could also ask the person if you’re the right person for them to talk to and find someone else if you’re not. You might feel offended that someone isn’t willing to open up to you. Try your best to remember that support is about what is best for the person you are supporting.

TIP #5: Listen attentively until they’re finished talking.

 

Sam 5This may sound obvious, but I can’t stress it enough – listening is a skill that’s extremely important to practise if you want to be a good support person.

Often when you’re listening to someone, something they say will trigger a thought in your head. This takes your attention away from listening. Usually when you end up engaging with a thought, you will want to talk about what you’re thinking. The issue with engaging with your own thought processes is that you’re not fully listening at the time.

At some stage the person you’re trying to support will realise they’re not being listened to, which may lead them to think that their point of view is not worth hearing. You could also miss a crucial part of what they’re saying, which could result in you missing an opportunity to say something they desperately need to hear at the time.

So how do you listen skillfully? It’s easy in theory, but it takes lots of practise to get good at. The first part of the skill is noticing when your attention has wandered away from listening. You may be dwelling on something that was said, thinking about what to say next, or distracted by something else going on around you.

When you notice that you’re engaging with your own thoughts, rather than listening, let the thought go – you don’t need to be thinking about it in that moment. I can’t stress how important this is, LET IT GO, even if it means forgetting it. People need for you to be holding a space of listening when they reach moments of expressing raw emotion and vulnerability!

Once you let go, bring your attention back to listening again. From there it is a continual process of noticing when your mind has drifted, letting the thought go, and focusing on listening again. Notice, let go, listen – again and again while the person is talking.

If it looks like they’ve got something else to say, try waiting patiently. If you see someone hesitate or say something like “oh no, don’t worry”, try asking them what they were about to say – they may need your encouragement to get it out. The entire conversation has been getting them to this point. It’s also useful to ask if they’re finished before saying something in response.  

TIP #6: A mate’s burden is less heavy when you feel emotions with them

 

 “A common misunderstanding many people have is that you can solve an emotional problem with logic. This approach makes logical sense because people are brought up to solve logical problems with logic. However, the best way to solve an emotional problem is with emotion. It is totally logical”

Dr. Robin Youngson started Hearts in Healthcare – a movement that promotes the phenomenal healing effect that can occur when people take the time to share other people’s pain. For a doctor, this may look like sitting with a patient, listening, and connecting with them until they experience a taste of what the patient is experiencing.

The phenomenal healing effect of compassion is not restricted to health professionals. It is a method that anyone can employ who wishes to support someone. The method is simple – hear someone out, look them in the eyes, put yourself in their position, and let yourself feel any feelings that come up.

“It is important that you don’t offer support from a position of being “more well”, which can come across as sympathy. For example, “I’m really emotionally intelligent, so I think I can help you.” We’ve all got mental health and we’re all vulnerable to loss, so it seems only right to speak to each other on that same level.”

Before offering support, check in with how you’re feeling and decide whether you have enough energy. If the answer is not clearly a yes then consider if there is anyone else around who may be able to support the person you’re concerned about.

It’s important to have boundaries when people are asking you directly for support. What that means is being able to say no when you’re not up to it. I personally find that people respect no, but respond to it even better when you explain why you’re not up to it. This reveals that you’re also vulnerable, which at least tells the person that they’re not alone.

You could support the person to find someone else, or plan a conversation for a later date. You will be much better at supporting someone when you’re feeling mentally well yourself.

TIP#7: Before finishing challenging conversations, try talking about something positive.

 

Another lesson I learnt while working as a psychologist was not to suddenly finish in the middle of a tough conversation because I was out of time. It can leave the person in worse shape than before you started talking. One way to know when a tough conversation has reached a natural end is that you feel a lift in mood and sometimes end up laughing and joking.

It’s important to ensure that there is at least 10 minutes to unwind from a conversation. The best technique I’ve learnt is to get someone to teach you something. Focusing on teaching shifts their attention. Their mood transforms as they communicate their knowledge. People often seem hesitant initially, but once they think of something to teach you, both of you will enjoy the shift in dynamic between the giving and receiving positions.

TIP #8: Whatever happens, let them know that you’re there for them.

 

Sam 8The toughest thing about tough conversations is that they don’t always go well. Sometimes it feels like talking made something worse, sometimes people aren’t ready to open up a wound, and other times someone might feel angry or upset by something you said. Whatever happens, making time to support someone sends a message that you’re there for them, which is often the most important thing.

“If a conversation doesn’t appear to go well, try not to despair. I’ve personally been surprised just how much people process after a conversation. The benefits of supporting someone may not show up for days or even years.”

Sometimes on reflection I realise something I said may have been more harmful than helpful. If this happens, l always seek to “check in” about it later with the person. Ask an open question when you’re checking in, so you don’t bias their response, e.g. “do you remember when I said… how did that land for you?” If they let you know something upset them, then it is an opportunity to apologise and heal any rift caused between you.

If they’re not ready to open up, you could make it easier for them to contact you in the future, e.g. “I’m here for you, and I’m a phone call away if you ever want to talk”.

Advanced Tip: Acknowledge the advantages and usefulness of a point of view before challenging it.

 

Most of the time there are at least a few aspects of what someone is saying that are useful. However, other parts of what they’re saying may be contributing to the problems they’re experiencing. It is important to first identify the useful parts by pointing them out to the person. Acknowledging the truth of someone’s experience helps them see that you understand and respect them, which may help them accept your challenges to the aspects of their point of view that you think are less useful.

If they can keep the useful parts and modify the problematic parts then the result will most likely be a more balanced and healthy point of view.

Talking about suicide

 

People commonly think about suicide when they’re having a tough time. It is really supportive to keep calm and level headed if someone brings up suicidal thoughts. More often than not people won’t be planning to act on their thoughts. It is helpful for people to talk about their suicidal thoughts without feeling judged, or having you jump into panic mode, because it helps them realise that thinking about suicide is a normal part of coping.

If there is any reason to suspect someone is likely to attempt suicide imminently or has a method planned that is likely to be effective then it is important to act. Call 111 or go to your nearest emergency department (ED). There are also other options available to consider on the Mental Health Foundation’s website: https://www.mentalhealth.org.nz/get-help/in-crisis/

If the person you’re supporting is not planning to act on their thoughts, ask them questions to explore what is going on behind their thoughts – “what is causing the pain that you want to escape from?” It is helpful to talk about the people and activities in the person’s life that are likely to keep them safe. It is also useful to provide your phone number and ask the person to promise to call you if they find themselves going beyond thinking to taking action. You may be able to support them to get professional help before a crisis occurs – I recommend the following two search engines to find a psychologist, or talking to your GP about local therapy options.

New Zealand College of Clinical Psychologists

Find a Psychologist

Sometimes people won’t bring up thoughts of suicide without being prompted because they’re worried that they could be sent to hospital. I’ve found that if I’m concerned someone is thinking about suicide, then they usually are. People will feel more comfortable to talk about suicidal thoughts if you confidently ask them if they’ve been thinking this way; it shows them that it’s a normal response to their situation.

Final Thoughts

 

I believe good support boils down to being there for someone, creating a comfortable space, and sharing feelings in a genuine way. We absolutely need more support to take place at a community level if we want to see mental health and well-being to improve in Aotearoa. Get out there and support a mate, don’t be afraid to ask for a help, and let’s create a more supportive culture together.

Let us know in the comments if you tried any of these tips, and how they went! We’d also love to hear if there’s anything you’d like for us to go deeper on.

Sam logo

A Man on a Mission

It’s not every day that you meet someone who is putting everything out there to make a significant difference to New Zealanders’ lives. Last night I got to meet such a person – Sam from Toughtalk.

Sam is a clinical psychologist and founder of Toughtalk. Toughtalk’s mission is to improve the mental health of New Zealanders by getting men talking about feelings and the things they do that serve their wellbeing. In two seasons of pretty sharp videos, Sam gives some every day Kiwi blokes the space to talk about wellbeing and we get to watch the conversations unfold. Given the statistics relating to male suicide in New Zealand, this is seriously important work!

Go check out his videos and if you like what you see, consider supporting Sam in his work by spreading his work or by making a donation.

You can check out Sam’s videos at: www.toughtalk.nz

 

Keeping Yourself Covered – Helping the Kids buy a Home

Miranda and Simon’s daughter, Miria, is a very fortunate young lady. Miria is about to achieve what we are told is the unachievable in Auckland – she is buying her first home. She is fortunate because Miranda and Simon are able and willing to help her make this purchase. Dipping into their own investments, Miranda and Simon are giving Miria $120,000 of the deposit she requires. She will, however, be responsible for the mortgage. Hearing this over a couple of wines one evening with Miranda, I quickly switched into lawyer mode and started raining on Miranda, Simon and Miria’s parade.

“What will happen if Miria’s boyfriend moves in?”, “Have you considered how you would feel if Miria, one day, separates from her future spouse or partner who ends up with half of the house and hence half your gift?”. My questions rolled on as the colour drained from Miranda’s face and her glass rapidly grew emptier. What started out as a genuine desire to help their daughter get ahead was fast becoming more complicated and risky.

What can you do if you want to give your child financial assistance but don’t want his or her future partner or spouse benefitting from your generosity in the event of a separation? With housing affordability being a hot issue in all the major centres, this question is increasingly coming up.

“We’ll make her do a prenuptial type agreement” was Miranda’s first thought. It’s a good idea. However, its difficult to enforce. Once the money is paid out to Miria, Miranda and Simon will be unable to require Miria and her future partner to enter into a Contracting Out Agreement. Miria may see the sense in protecting her investment from relationship property claims but, once cupid’s arrow hits her, she may be unable to imagine the relationship ever ending. Furthermore, the law may see Miria as being in a de facto relationship when she doesn’t. Perhaps Miria and her partner won’t want, or be able, to spend money on each having a lawyer to complete an agreement. Perhaps life may just be busy and Miria and her partner simply don’t get around to it. Whatever the reason, there’s a high chance an agreement won’t be entered into.

“We’ll do it in a trust” was Miranda’s next solution. The solution looked to by many is that either they form a family trust to make distributions to their children or their child forms a trust to own the home. Forming a trust, in itself, is a costly exercise and the trust will require ongoing cost and attention in order to prevent it being challenged in the future. Even if a trust is formed, this alone will not likely protect the monies or home from a future relationship property claim. Other steps, such as a loan agreement and/or a Contracting Out Agreement will still be needed. You will need more than one moat around your castle.

So what should Miranda and Simon do? The simplest and probably most cost effective thing to do is have a loan document prepared and signed. This will confirm that the money being advanced is a loan and not a gift. If Miria and a future spouse separate, the loan will be taken into account as a debt owed.  The loan can provide that repayments are not required unless demand for repayment is made. On a future separation, Simon and Miranda can demand repayment to ensure half the monies don’t go off with Miria’s ex.

Got a question or concern about protecting property from relationship property claims? Give the experienced team at Family Law Results a call on +64 9 297 2010 and we will listen to your concerns and guide you to find a solution that best meets the needs of you and your family.

Keeping Yourself Covered – Protecting Gifts from Parents

Rebecca was struggling – she was facing all the usual challenges of a being a first-time mother to a three months old baby. She was also contemplating separating from Alvin, her de facto partner of five years.  We discussed the all too real pressures that coping with the demands of a baby can place on the relationship between its parents. We explored what, from Rebecca’s perspective, would need to change to prevent a separation and the supports that were available to her and Alvin.

Rebecca was keen to try some of the interventions we came up with that may address her concerns with her relationship and avoid a separation. However – just in case – she also wanted some picture of what may happen in terms of their property should they end up separating.

Last year, she bought the home that she and Alvin live in. Her parents generously gifted her $150,000 towards the purchase (they’d done the same for her older brother). She also used $80,000 of her own savings. She earned more than Alvin so she was also paying more towards the home’s mortgage and expenses.

Rebecca proudly told me she had safeguarded things by ensuring the home was registered in her name alone. She had also borrowed the mortgage in her name alone. Alvin’s payments to her were purely “board” for living in the home. She was feeling happy and confident that she’d set things up so that Alvin had no claim over her home and couldn’t walk away with any of her parents’ gift.

Sometimes as family lawyers we must rain on people’s parade. We can’t always tell clients what they want to hear. This was one of those times.

Despite the fact the home and mortgage were in Rebecca’s sole name, she was dismayed to learn that by law the home was relationship property. The principal family residence is given special status in law as the “family home”. Given their relationship had existed for more than three years, the law provides the home would be divided equally between her and Alvin if they separated.

Rebecca challenged me on this – What about the fact she had contributed more financially to the home and its expenses? This is a common situation where one party earns more than the other in a relationship. Unfortunately for Rebecca, it does not give rise to a legal basis for departing from equal sharing of the family home. The equal division of the family home applies irrespective of how or when the home was acquired.

Rebecca’s savings that she contributed to the purchase of the home were acquired during the relationship so these would be regarded as a contribution of relationship property to the acquisition of the home, even though they came from her income. If they had been squirrelled away by her prior to the relationship, they would be her separate property but once they were contributed to the family home with her consent, they become relationship property as part of the home.

Rebecca was beside herself but felt she had one last hope –  what about her parents’ gift? I questioned her further about the intention behind her parents’ contribution to the purchase of the home. She was very clear it was a gift and that they had gifted a similar amount to her brother when he bought his home some years ago. She indicated there was never any intention of it being repaid to them. There also was no intention that they would have any interest in the home. There was no loan documentation completed. In all the documents provided to the Bank for the mortgage, the monies from her parents were declared to be a gift.

While one view could be that her parents only ever wanted Rebecca to benefit from the gift if her relationship with Alvin broke down, this hasn’t prevented the Court finding in other cases that the family home gets divided equally even when gifts have been used to purchase it.

Understandably, this was not the news Rebecca had expected. She may have grounds for an “extraordinary circumstances” claim to depart from equal sharing given the level of her contributions compared to Alvin’s but such claims are notoriously difficult to successfully mount. Even if she was successful in such a claim, she is likely to incur considerable legal costs, stress and delay in the process. Rebecca felt resigned to her only hope being that Alvin may “do the right thing” and agree to the gift from her parents being treated as her’s alone.

What could Rebecca have done to avoid this? Firstly, when she bought the home she should have been upfront with her conveyancing lawyer about her relationship with Alvin and that he would be living with her. Taking advice, and acting on that advice, at the time the home was purchased would have prevented her being left in this predicament. She could have:

(a) put the home in a family trust and coupled this with a Contracting Out Agreement to set out that any interests or property rights she may have in the trust are her separate property. This may be more than needed for Rebecca’s circumstances and having a Trust comes with ongoing costs and administration;  or

(b) entered into a Contracting Out Agreement with Alvin to preserve the gift as her separate property and to set out how the home was to be treated if they separated; or

(c) had her parents own a share in the home proportionate to their contribution to its purchase. If she had done this, it would have been prudent to enter into a Property Sharing Agreement with her parents to set out the basis on which they co-owned the home and their respective obligations and rights. Depending on what she wanted to see happen to her interest in the home on separation with Alvin, a Contracting Out Agreement with Alvin may also have still been needed; or

(d) entered into a loan agreement with her parents requiring repayment of the monies they advanced so that on separation, the monies would be repaid back to her parents (who could have then advanced it to Rebecca alone again). Again, a Contracting Out Agreement with Alvin would have been prudent if Rebecca didn’t want to be in a situation where the home, after repayment of the loan to her parents, had to be shared equally with Alvin.

All was not lost for Rebecca – Contracting Out Agreements can be entered into at any time during a relationship, not just at its inception. Rebecca said Alvin had always taken the view that the monies from her parents was “hers”. Therefore, she believed that Alvin would willingly enter into a Contracting Out Agreement to confirm that the gift from her parents should be preserved as her separate property and she should receive this if they did eventually separate.

Worried about what may happen to your property if you separate? Going to gift money to your child to purchase his or her home? Looking to have your partner or spouse live in a home you are buying? Give the team at Family Law Results a call on 0064 9 297 2010 so we can help you ensure things are set up correctly in order to avoid shocks like Rebecca had!

Keeping Yourself Covered – Protecting Your Contracting Out Agreement

After years of careful saving and contributing to Kiwisaver, Murdoch was excited about buying his first home. On learning that Murdoch’s partner was going to be living in the home with him, Murdoch’s conveyancing lawyer quickly sent him to see me for a Contracting Out Agreement.

Murdoch explained to me he wanted the Contracting Out Agreement to make sure that is and his partner ever split up, “the home is all mine” and that his partner did not have any claim to it. Murdoch’s rationale was straight forward enough – the relationship was only a year old, he was providing the deposit that he had saved hard for and would be liable for the mortgage. Meanwhile, his partner hadn’t been so prudent and did not have Kiwisaver nor much in the way of savings to contribute.

Contracting Out Agreements are often referred to as “pre-nuptial agreements” but, in reality, one can be entered into at any stage of a relationship. They are commonly used to preserve assets as the separate property of one spouse or the other in the event of a separation. As in Murdoch’s case, this is often in recognition of the greater financial contribution made to the acquisition of an asset by one spouse. Some parties will each bring assets of their own to their new relationship. Sometimes they have children from previous relationships that they wish to have benefit from the property they have each come into the relationship with. All are situations that can be accommodated for in a Contracting Out Agreement. We all insure our significant assets against events such as fire, natural disaster and theft. Statisically, you have more chance of experiencing a separation or divorce than those events. Think of a Contracting Out Agreement as a way of insuring your property from relationship property claims in the event of a separation.

Murdoch’s agreement was quickly sorted out with his partner. However, Murdoch was concerned at my advice that the agreement be regularly reviewed, especially when there were significant changes in their relationship or financial situation. He really didn’t want to have to spend more money on the agreement in the future. He particularly struggled with my advice that, over time, he may have to consider providing for his partner to have some interest in the home. I had to caution Murdoch that the protection the agreement afforded him could wither away over time unless it was regularly reviewed and amended to keep up with changes in his relationship.

Agreements that square away the major assets to just one spouse, leaving the other out in the cold, can be vulnerable to being set aside by a Court in the future if giving effect to the agreement would give rise to serious injustice. An agreement that is just today, could be render unjust as the relationship evolves. There is only so much crystal ball gazing into the future that we can do when we enter a Contracting Out Agreement.  Agreements are particularly vulnerable when the parties to it simply place it in a top drawer to gather dust and their circumstances change over time. As time marches on, contributions (financial or non financial) by the other spouse could mean the agreement becomes unjust, particularly if children come into the picture.

This is not to say such agreements are a waste of time. It just means that, like your insurance policies and your wills, they need to be treated as a “living document” if they are to continue to be effective. You don’t just pay your insurance premiums once and forget about the policy. At various times, you will review your insurance cover, sometimes incurring higher premiums, to ensure the policy meets your needs and that you are sufficiently covered. Similarly, you need to review and update a Contracting Out Agreement regularly with the benefit of legal advice to ensure it still covers you if you ever have to bring it out of that top drawer.

Thinking of a Contracting Out Agreement? About to move in together? Been living together for a while but concerned to get your affairs in order? Got a Contracting Out Agreement but haven’t reviewed it in years? Give the experienced team at Family Law Results a call on +64 9 297 2010 and we will listen to your concerns and guide you to find a solution that best meets the needs of you and your family.

When Child Support gets in the way of a holiday…

Imagine being at the airport, neck pillow, passport and tickets in hand, looking forward to your holiday overseas only to find yourself stopped from travelling for failing to pay Child Support. Media reports this week indicate this has been a reality for record numbers of Australian parents with outstanding child support debts.

Could this happen to you in New Zealand if you haven’t paid your Child Support debts before leaving the country? Yes, it can.

Inland Revenue shares information with New Zealand Customs and Internal Affairs to enable it to locate those who owe child support who are travelling. If IRD believes you are about to leave New Zealand with the intent to avoid payment of your child support debt, it can seek to have you arrested and brought before the Court. if this happens, forget about your business trip or holiday – the only place you are travelling to is straight to the cells followed by a sojourn in front of a District Court judge.

When you appear before the Court, it can order that you not leave New Zealand without the Court’s permission. You can also be ordered to surrender travel documents and/or provide security for the payment of the debt.

If you have Child Support debts, our advice is to always come to payment arrangements with Inland Revenue before it takes enforcement action, including stopping you from travelling. This will save you a lot of penalties and enable you to still enjoy your trip.

Got a Child Support issue you need legal advice about? Contact the team at Family Law Results on 0064 9 297 2010 or at lawyers@familylawresults.co.nz.

 

When Will it Change?

Listening today to reports of allegations that five female university students were sexually harassed while  completing a summer internship at one of the country’s largest law firms, I am left with an unrelenting pit of despair in my stomach. When will things change in my profession?

Over 20 years ago I was a summer intern at a “Big 6” firm. Fortunately, I didn’t encounter sexual harassment in my time there. This is not a “Me Too” moment. However, I could well see the potential for it. What I most remember of this time in my career is the terrifying cocktail of the exhilaration of embarking on my career mixed with the daily apprehension and lack of confidence I felt as I moved within that world. Even with years of experience under our belts, many of my female contemporaries continue to carry “imposter” feelings, crises of confidence or shy from challenges they are more than capable of meeting for fear of not “being up to the task”.  This is nothing new or earth shattering. Women have known, and quietly whispered, of this affliction within our tribe forever. Sheryl Sandberg got a bestseller out of it in her book, “Lean In”, helping to amplify the conversation. To think that twenty plus years later young women, likely carrying with them those same feelings I had, have been welcomed to our profession with sexual harassment is shameful.

I well remember the emotion of a fellow junior colleague confiding in me about the sexual harassment she received from her boss before she’d even got through lunch on her first day in the job.  Over the years other stories emerged – the secretary who felt she had no choice but to leave her job because of the overt sexual harassment by the owner of the practice; the colleague who felt uncomfortable because of the calls and invitations she received from a senior male colleague; the colleague who was left confused and grieving after being propositioned by a married male partner who she previously considered a professional mentor; the two female junior lawyers who came into the interview room I was in at Court to quietly discuss the inappropriate comments made to them outside by a senior male colleague.

In other ways, my female peers are made to feel “less than” and undervalued while trying to simply go about their daily work:  the male partner who jokes the firms’ maternity leave policy is “you get pregnant, you leave”; the client who, in explicit terms, talks to his junior female lawyer about aspects of his sex life and his anatomy (completely irrelevant to his case) yet doesn’t do the same when he is moved to a male lawyer; the junior lawyer who has a more senior male colleague make derogatory remarks about an aspect of her physical appearance during a settlement meeting. The list goes on. I well remember the male respondent who, in one of my first, nerve wracking hearings, insisted on answering my cross examination in a condescending, patronising tone while calling me “girly” and “sweetheart”. This occurred in front of a senior male lawyer and a male Judge who didn’t bat an eyelid. I have no doubt that had he made a racist comment in that Courtroom, he would have been reprimanded swiftly but his sexism went uncommented on. I was left feeling belittled and to assume it simply either wasn’t seen by these two men in power or was just viewed as the rigours of litigation. Harden up sweetie.shutterstock_738589228

I am writing of only a small few of our male colleagues, not all of them. Most of my male employers and colleagues have been wonderful. I am particularly fortunate to enjoy collegial relationships with male colleagues who will be equally as appalled as I am at these stories. Most of the men in my profession conduct themselves around all their colleagues, male and female, in an entirely respectful, professional manner. Sadly, anecdotal evidence suggests the perpetrators of what can be described as (at best) clumsy and inappropriate and (at its worst) predatory or harassing behaviour towards their female colleagues are older, senior members of our profession.

Do the women of my anecdotes, all of whom are educated, strong and independent, formally complain? No. And so it goes on. A myriad of reasons stops us from complaining. The hierarchical nature of the profession and a sense of “knowing our place” against more senior colleagues. The lack of confidence we have as juniors, particularly when jobs are so rare and sought after. Not wanting to be seen as “a problem” or “a prude” or “unable to take a joke”.  Sometimes, just wanting to have it be over with. Then there is the small firm isolation experienced when one is left feeling powerless as the “HR department” or manager to go to is also the owner of the firm and the perpetrator of the behaviour.

Good on these five young women for standing strong on this and complaining. Good on the Vice Chancellor of Victoria University, Grant Guilford, who on National Radio today labelled perpetrators of sexual harassment as “arseholes” and called for greater understanding within workplaces and our society of the long term harm caused by sexual harassment. Kudos to his interviewer, Kathryn Ryan, who upon hearing about initiatives being taken to “prepare” young women for entering the workplace and dealing with such situations, stated the obvious– shouldn’t young women be able to go into the workforce and simply not have to encounter such behaviour?

To my profession – as lawyers, most of us have very keen social justice radars. We are quick to jump on causes. But our own house must be tidy. We must be alert to those who subvert the respect and honour of our roles. The men in our profession need to all be the biggest advocates for their female colleagues. The women in our profession need to take a leaf from the book of those five students who have complained. We need to stand strong and not allow ourselves and each other to sit silent or merely whisper about this. We shouldn’t accept this behaviour as an inevitable rite of passage in our careers. The irony is that many of us are exceptional advocates for our clients yet not for ourselves and each other.

To those few guilty male colleagues, let me break it down for you simply–

  • Interviews I heard today suggested that consumption of alcohol at workplace functions is a contributing factor to sexual harassment. Alcohol is no excuse. If having a few drinks causes you to make bad decisions, behave inappropriately and to abuse your position of trust and seniority, you have a much bigger problem. Do what you need to deal with it.
  • The target of your behaviour is not amused or enamoured by it. That is no reflection on their sense of humour or their sexuality. The target of your behaviour is not a “prude”, “frigid” or “unable to take a joke”. Your behaviour isn’t a joke. Unwanted sexual attention or comments about one’s physical appearance are not a turn on.
  • As a starting point – here’s a simple litmus test: if you wouldn’t say something to your male colleagues, don’t say it to your female ones. Never. Just zip it. If you wouldn’t act in a certain manner towards your male colleagues, don’t conduct yourself that way with your female ones. At the very least it is not appropriate. At its worse, it is criminal. At any level on the spectrum, it can destroy a women’s sense of security and self and can ruin careers.
  • Finally, let’s be very clear – the women of my profession talk to one another. We may not be parading the red carpet dressed in black with Time’s Up badges adorned but we confide in one another about your behaviour. Yes, that’s right, we talk about you. Your reputations are muddied. We know who you are. We don’t forget. Even after 20+ years.
  • Shame on you. But more shame on you if, now being aware the time for change is here, you choose not to.

Guest Blog: Jennifer Hetherington, Mediator and Family Lawyer, Queensland

Well, what a stellar guest blogger I have today!

I first met Jennifer Hetherington when we both served on a committee for the International Academy of Collaborative Professionals. When I say met, we didn’t actually meet in person for some years but rather exchanged emails and were voices across a conference call line during committee meetings. When I finally met Jennifer in person, it was like a whirlwind came through my office. What a dynamo! She practices out of Queensland where she is an award winning family law specialist, a mediator and Collaborative Professional.

Before Christmas, I blogged about the difficulties Australia’s anti-same sex marriage laws posed to those same sex couples who had married in NZ but wanted to divorce. Jennifer kindly agreed to write a guest blog from “the ground” in Australia where she writes the first same sex marriages are taking place along with the first same sex divorces.

Thanks so much Jennifer!

SAME SEX MARRIAGE LAW NOW ENABLES DIVORCE FOR COUPLES WHO MARRIED IN NZ (Jennifer Hetherington, Hetherington Family Law)

Australia’s historic same sex marriage laws has finally resolved an unexpected quandary faced by same sex couples who were legally married in New Zealand but move to Australia.

Until Australia made same sex marriage legal, same sex marriages in New Zealand were not legally recognised in Australia (see last month’s blog).

A consequence of that meant couples who married in New Zealand and made the jump across the ditch and now wanted a divorce in Australia were in a legal limbo – their marriage was not recognised in Australia and they could not get a divorce as they were no longer domiciled in New Zealand.

Everything changed on December 9 when same sex marriage became legal in Australia.

The law means same sex marriages in New Zealand, are now legally married in Australia which also clears the way for couples who seek a divorce.

Until December 9 you couldn’t divorce in Australia until our same sex marriage legislation was passed. The irony is that while you could not divorce you could do a property settlement as a de facto couple (with potential greater rights than in New Zealand!)

While Australia embraces a wave of emotion to welcome same sex marriage, the prospect of our first same sex divorce is closer than you might think.  Even before the first same sex marriage took place a Perth couple had engaged lawyers and are set to become the first same sex couple in Australia to divorce under the new laws.

Australia’s marriage equality law change now brings our country into line with international thinking.

While Australians are celebrating the legalising of same sex marriage we have to acknowledge the fact that, as with many relationships, it doesn’t always work out.

It now means some of those people who flew to New Zealand to be married under their same sex marriage laws are now able to apply for same sex divorces in Australia.

You can learn more about Jennifer Hetherington or contact her at her website here.  Jennifer is an award winning specialist family lawyer and mediator. Her firm, Hetherington Family Law, is based in Brisbane, Queensland, Australia. However, she grew up in the City of Sails (Auckland!) before jumping across the ditch in her teenage years and will always remain a loyal All Blacks fan. 

Jennifer and thefamilylawyer.co.nz’s Selina work closely together on matters where couples have property in both Australia and New Zealand.

 

Guest Blog: Kimberlee Sweeney – CDC Certified Divorce Coach

I first heard about Divorce Coaches while in the US several years ago but it wasn’t until 18 months ago that I met a NZ based divorce coach, Kimberlee Sweeney.  Kimberlee is a pocket rocket full of great ideas, knowledge and tools to help clients navigate the separation path. Kimberlee is the person to see if you

  • are contemplating separation but need support and clarity as you work through your decision;
  • want assistance to communicate with your ex in a calm and open way;
  • feel the need to put in place and implement a practical, step by step plan;
  • want your legal fees to go further and to work optimally with your lawyer or mediator; 
  • want to work through the cloud of emotion you’re experiencing in order to make supported, focused and practical decisions

I love working with like minded professionals who aim to empower their clients to make child focused and life enhancing decisions for themselves and their families. Therefore, it is a huge pleasure to introduce you to Kimberlee Sweeney and have her as my guest blogger. Take it away Kimberlee… 

Lawyers and Divorce Coaches: A mutually satisfying partnership (Kimberlee Sweeney, CDC Divorce Coach)

In my profession as a CDC Certified Divorce Coach, I have built a portfolio of experts to refer clients going through separation or divorce.  I have spent a substantial amount of time meeting with Barristers, family lawyers, mediators, financial experts, mortgage brokers, real estate agents, counsellors and psychologists, and the like.  I prefer to refer my clients to experts I have personally met and try and match my clients to those experts whom I think they will relate well to.

Working in partnership with a team of legal experts has ultimately prepared my clients for the process of the legalities of separation and divorce.  In turn, my stable of legal experts also refer  their clients to me, when there has been a need for additional support outside of their law office.

Divorce coaching is expanding worldwide but is a relatively new type of coaching here in New Zealand. There is a growing need for more support in this speciality area, especially with all the changes going on within our, “bursting at the seams”, courts system.

Lawyers need credible Divorce Coaches who can broker a clear pathway for them, with clients going through the crisis of a separation or divorce.  A Divorce Coach can facilitate constructive communication and assist clients to settle their disputes out of court in a more collaborative fashion via their lawyers. A coach supports them in and out of meetings and mediations and prepares them both emotionally and organisationally for such meetings.

A divorce coach can assist clients to work through the emotional effects of dealing with separation and divorce, help them to think more clearly about how to move forward in the process, and focus less on reliving the past.  Ultimately getting them organised and putting plans in place, systematically during each phase of separation and divorce. This is beneficial to a family lawyer, who can then work out the practical and legal aspects of separation and divorce, and allow the Divorce Coach to handle the background preparation and emotional toll of divorce.

When children are involved a Divorce Coach can assist parents with developing a ‘Parenting Plan’ that opens up the potential to, co-parent their children amicably and co-operatively, providing the children with structure and security so they can transition into a new way of living between two homes feeling supported.

Some signs that a client could be well served by a Divorce Coach include:

  1. They are locked into one option and refuse to consider other possible solutions
  2. They refuse to examine any other perspective but their own.
  3. They are either overly optimistic or overly pessimistic about how things will turn out for them after the settlement
  4. They lose sight of what is best for the children
  5.  They are so overwhelmed they are stuck in indecision
  6. They have no idea how to rebuild a life on their own.
  7. They simply don’t know where to start and need guidance on how to make wise decisions for their future.

Coaching helps the client explore other options or shift their perspective to consider other possible solutions. It’s a flexible, goal oriented process designed to support, motivate and guide people and to help them make the best possible decisions for their future.

If you would like to learn more about me and the services I offer as a Divorce Coach feel free to scroll through my website or contact me to set up a time for a meeting.

I look after clients all over New Zealand and even have had some clients in Australia. Coaching sessions can be via skype or telephone or in my offices in St Johns, Auckland.

Kimberlee’s coaching practice, Degrees of Separation, operates out of Auckland, New Zealand but she consults via Skype and phone also. You can learn more about Kimberlee and the different services she offers, including her introductory free Discovery session, by calling her on 021 279 9407 or head over to her website www.degreesofseparation.co.nz.

Thanks Kimberlee!