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E21: I’ve decided to separate. Now what?

On the Show Today You’ll Learn

Most people who decided to separate have never initiated a relationship breakdown in their lives.  The decision is scary and overwhelming.  Yet these very early stages can set the course for how the whole process plays out and even affect long term family relationships for years to come.

Knowing how important the initial stages are, Ben and Heather have dedicated this episode to provide advice for anyone facing the awful thought that it might be time to end their relationship.  Topics covered include:

  • How and when to break the news to your partner
  • How to prepare for that initial conversation if you are in a violent or difficult relationship
  • What are the big-ticket things you need to think about to ensure as little disruption to your family as possible
  • How to protect yourself financially in the early stages
  • Do you need a lawyer and can you and your partner share one lawyer
  • When to let the children know

And as a final bonus, Heather gives “advice to a friend” on what’s most important when first facing up to separation or divorce.  Given how many separations Heather has witnessed in over 40 years – her advice is well worth a listen!

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Full Episode Transcript

Welcome to The Family Matters Show

Benjamin Bryant: Hello, everyone, and welcome to Episode 21 of the Family Matters show podcast. I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers and I’m here with my business partner and family law specialist, Heather McKinnon. It’s just the two of us today. Heather, you’re raring to go?

Heather McKinnon: I’ve been to gym, and I’m really excited about just the two of us talking about what we do every day.

Benjamin Bryant: I know. Right? Back to basics. Before we start on today’s show, I just want to make a special shout out to retired Federal Circuit Court Judge Judy Small, who graced us with her presence on last month’s show. Judy was born and bred right here in Coffs Harbour, went on to have an international singing career and then became a family lawyer and ultimately a judge. If you haven’t listened to the podcast, I really recommend it to you. She has had such an interesting life and of course, it’s invaluable to get a judge’s perspective on the whole divorce and separation process.

Benjamin Bryant: Now, as I mentioned earlier, today it’s just back to me and Heather and we are going to go back to the very beginning of the whole separation process and answer this question: What do I do now that I’ve decided to separate? It’s a really scary and overwhelming time in anyone’s life. So I’m really pleased that we’re taking the time to look carefully at the beginning of the process. So much depends on how you handle yourself in the early stages. Isn’t that right Heather?

Heather McKinnon: Absolutely Ben. It’s really easy to make a wrong move at the beginning and set up a spiral into really bad chaos. So the more prep you do at the beginning, the soother the process will be for everyone.

Benjamin Bryant: So true. And just before we get started, I want to encourage everyone to share this podcast with any friends or family who might be on the brink of separation. The earlier we can provide some of the answers, the better the likely outcomes. Also, if you or someone you love has questions about separation or divorce, we are always happy to try and provide answers on this show. Just send your questions in confidence to familymatters@bryantmckinnon.com.au or message us on Facebook. Now on with the show. Are you ready, Heather?

Heather McKinnon: Absolutely. Fire away Ben.

How to break the news you want a separation

Benjamin Bryant: If we go right back to the very beginning of any separation, it is very often one person who initially comes to the conclusion that the relationship is over, the other person in the relationship may be blissfully unaware that their world is about to fall apart. Heather, do you have any thoughts on when and how to break the news and how to manage things once you’ve had that first conversation?

Heather McKinnon: It’s the hardest in most people’s lives. So what I tend to say to people who come to see me before they say separate, is that, by and large, the best way to approach it is to try and engage your partner in some relationship counselling. So rather than drop the bombshell, “I’m out of here”, you say to your partner, I’m feeling really unhappy and I think we could benefit from talking to somebody who might be able to help us. The reason that that works well, in my experience, is during the process of relationship counselling, both people often reach the mutual conclusion that the relationship is over so that one person doesn’t have to bear the total responsibility for ending it. And the psychologist or social worker or counsellor that does the couples counselling can often help people to get to a much more resolved way of moving forward and accepting that the relationship’s terminal. In a couple of cases, it actually saves the relationship, which is a by-product because the issues that have led to the crisis are more properly analysed with the help of an expert. So it could be undiagnosed mental health issue, a substance abuse problem, something that’s happening that people are not prepared to face head on. So for me over the now decades of seeing people, that would be more wish, that if the relationship gets into that terminal territory rather than slang it out over the kitchen table, you go to someone who can help you both in a civilised manner, work out what you’re going to do going forward.

Benjamin Bryant: And Heather, I find that almost on a daily basis, we speak to clients and people that come and see us, perhaps for the first time, perhaps they’re not separated yet. And we talk about the cycle of grief. Because normally when you have one party that has been thinking about separation for some time, like “not another Christmas” or “not the mother-in-law again” or something like that, and they started grieving the loss of their relationship already. And they started to look towards the future and start to get things in place. But the other party sometimes is, as I said before, blissfully unaware. They knew things aren’t that great, but they didn’t think they were that bad either. And so when the parties have this conversation for the first time, there’s almost like this big catch up. Because one party has already grieved. They’ve already gone through all the stages and the other party’s just starting their process. So both parties really need to be cognisant of that.

Heather McKinnon: And certainly our work is in that space, as you describe: the catch-up phase. Where people will use maladaptive behaviours to try and hold on to the relationship. So they cause conflict because it’s their way of trying to get things to stay as they are.

What should be in place before leaving a violent or difficult relationship

Benjamin Bryant: And Heather, if you’re in a difficult or possibly violent relationship, what things should you have set up before that initial conversation?

Heather McKinnon: So certainly this is the biggest area of concern in our culture at the moment. So we know that separation is the most dangerous time for anybody who’s leaving a violent or controlling relationship. So it’s about education. Making sure that you understand how the police are involved in apprehended violence orders if you need one. The team at the police stations that are trained in this field are very often prepared to talk to you before you separate so that they have an understanding that you may be in a situation where you need the help. The police have fantastic kits available on things to do. So how to ensure your safety. Make sure that you have an escape plan so that you know where you’re going to go if you do have to leave the house. Alert close family and friends who will be there to support you. And then it comes down to things like immediate financial needs. So you may need to attend the bank to transfer joint money under your control so that you’ve got something to tide you over in that initial period of shock. For many people, they will need the help of Centrelink at the time of separation. We know that most people with young children will need help for up to a year from Centrelink. Despite what you hear in the media, people are usually on that parenting support payment for a very short period of time. But if you are in that category where you might need that help, it’s really important to make sure that you understand how that system works and to register and start talking to the social workers at Centrelink, if you need to, about what support you can get if things get really nasty. So it’s getting all that advice so you understand what’s available for you.

Benjamin Bryant: And I think it’s really important to remember, for everyone to remember, and this is what we’re focusing on now, is that violence does not end at separation. Violence continues after separation it might just take on a different form. Sometimes it takes on the same form. It could be physical violence. And that’s, of course, you mentioned the police and victim services and things, but also the more nuanced violence: the controlling, the coercion, the financial control, things like that. We need to be really aware of those things. And as you mentioned before, with parties touching base, perhaps with the police, and they’re going to give them their phone to see if there’s any tracking device. Sometimes it can be some nasty tracking devices. Sometimes it’s just a thing like turning a family sharing on an Apple device or something like that. So it’s really getting the knowledge and like you said, the support.

Heather McKinnon: Absolutely. And I think realising that these cases that spiral out of control are not categorised by particular social socio-economic backgrounds or any particular sort of idiosyncrasies, we can’t tell which ones are going to go off. And that’s the big problem. Even though we have some forensic sort of methods of looking at whether someone’s likely to adjust well, an adjustment disorder to a breakdown of marriage or relationship can’t be predicted? It can come out of left field.

What are the big-ticket items in the early stages of a separation

Benjamin Bryant: And unfortunately, there’s no prescribed or proforma checklist for separation. So what are some of the big-ticket things that you need to think about in the really early stages to ensure that there’s as little disruption to you and your family as possible?

Heather McKinnon: So obviously the first one is, if there’s children involved, how are their needs going to be met? So, again, counselling: big, big, big ticket item. Get that started so that you can get mom and dad on the same page as to how you can calmly help the kids adjust.

Heather McKinnon: Housing is obviously critical. At the moment, right up the eastern seaboard there’s a huge rental crisis as the pandemic has shifted people out of the cities into the regions. So it’s a real problem for couples that are separating because there’s nowhere to go unless you’ve got family or friends that are prepared to put you up. So a lot of work has to be thought through in relation to that. Once you’ve got your immediate financial needs met through work and Centrelink, you’ve got the kids arranged into housing, then it’s really a rest and recuperation period. Once we see people, as you know, we usually suggest that by then just adjust to the separation for the next couple of months so you don’t leave your twenty-five-year marriage and then get a letter from the lawyer the next day saying, “I want to settle you up”. It’s just not appropriate. You need to allow that grief process to happen, allow people to heal the wounds, before you start looking at the longer-term decision making.

Benjamin Bryant: And I think I’ll just say to listeners, there’s always a degree of the precipice. You always have to take a leap of faith at some stage. I know that we have some clients come in and they say, they want to try and get all their ducks in a row to be as least disruptive as possible. But we’re not all Gwyneth Paltrow. We can’t all pull off the “conscious-uncoupling”. And that’s why the support is so necessary, because at some stage there will be a precipice that we need to walk off.

Heather McKinnon: And what I would say is, as you’ve mentioned, we’ve got on previous podcasts, interviews with some of our best judges, psychiatrists, social workers. Our whole system in Australia is one that allows families to move through the process with incredible support. And you don’t have to be fearful that you need to get that immediate financial support from your partner. Centrelink is there for a reason. Child support is there for a reason. And so that fear that you have is something that you can’t really make go away. But you can be reassured that we have excellent systems in Australia to support families going through the separation process.

How to protect yourself financially

Benjamin Bryant: And as one walks off the precipice, Heather, what things or what steps can they take to ensure they protect themselves financially?

Heather McKinnon: So one of the first things I suggest to people is that they have a look at what their cash reserves are. So most people live pay check to pay check, but often they’ll be say $10,000 under joint control. I suggest that if it is one of these cases that might go off, that they go and put $5,000 of that in their own account. Don’t take more than half, but get your own money under your control. Immediately notify your employer that your pay is to go from the joint account into an account that you control. Notify Centrelink immediately so that that process can start. So there can be an assessment early on as to what parenting payment and child support entitlements are there for you.

Heather McKinnon: And really, I think the biggest one is making that decision about whether you stay in the home or whether you go and rent. People still have these huge misapprehensions that if you leave the home, you’re somehow doing your property settlement entitlements. And that’s one of the biggest things that I listen to when a person first comes to me. “My family and friends have said, don’t leave the house, don’t leave the house.” And you have to say, well, on any given day around Australia, thousands of people are separating. And of course, one usually moves out, it has nothing to do with the property settlement. So they’re the sort of immediate things.

When to get a lawyer involved

Benjamin Bryant: And Heather, we have the separation. We have the grieving process. And to the lawyers. Is there a general rule of thumb on when a lawyer should get involved?

Heather McKinnon: So we would say that it is important in that information gathering phase, that you have an initial consultation with a lawyer. So an hour with a competent lawyer will give you a roadmap moving forward. So in a given year, we see in this practice six or seven hundred separating people, but we only have to do work on about half of those files. Once people have got a road map, they’re normally able to work out a sensible arrangement going forward. And their only contact will be if they want to do a property settlement and they’ve got to file consent documents to get stamp duty exemption, something like that. The bulk of people do deals without us being involved.

Heather McKinnon: So the 50% that we’re left negotiating are ones where there are property settlements, where there are unusual factors. There might have been inheritances, or one-party time came in with a lot of capital. But that initial assessment is usually pretty accurate. And I know you and I play a game where we look at a case that might go for three years in court and we go back to our initial notes and we always see how close we were to calling it. And it’s almost always about what happened. So we can tell what’s going to happen. But what we can’t control is the adjustment of the other party to the breakdown of the relationship. So the cases that go off are the ones where there’s an adjustment disorder and people aren’t commercial and they’re not realistic and they’re the ones that need our help in a lot more intense way.

Can both parties use the same lawyer

Benjamin Bryant: And Heather, a question that we get all the time. When things are amicable is it possible to use the same lawyer?

Heather McKinnon: So happens a couple of times a week. Certainly one of the main parts of our work is documenting agreed arrangements. So with a property settlement, the prices we recommend to formalise it is through a thing called an application for consent orders. But if a court is going to approve those orders, it does require both people to have independent certificates signed, to say that they understand what the deal is. So many couples come to us to help them negotiate a settlement, but it’s on the basis that when the documents are done, one of them goes to another lawyer to have that double check, that everything’s above board, that people know what they’ve agreed to and that there is someone independent from the lawyer who drafted the documents to certify that the deals within the range that the judge is going to approve. So it’s quite common for people to come to us to get initial advice and to see whether we can help them reach a deal. But we will always nominate one person as the client so that if the negotiations break down, the other person has to get their own legal advice. Or if they are able to document the agreement, one of them will have to agree to go somewhere else to get that independent certificate.

Benjamin Bryant: And the thing is, it’s not necessary at all to get lawyers to do an application for consent orders and access to justice. You don’t need to pay lawyers to do that. The parties can do that with the court themselves. And the courts are very useful in giving a prescribed form, the application of the consent. But its kind of forget the other form on there, which is the meaning of consent orders, which is actually what is agreed. And that normally requires a lawyer to draft that. That is who’s retaining the house, who’s discharging the mortgage, who’s refinancing the mortgage, who’s given the partnership and the trust and the superannuation payments, splitting orders and those things. So that’s normally where people need to see lawyers. So, it’s great if you don’t need a lawyer to get to the agreement stage. But once you’re at the agreement stage, you probably need a lawyer to draft that up for you.

Heather McKinnon:  The technical aspects of things like superannuation splitting require pretty, lengthy knowledge and learning to understand how it works but people can have their own attempt at it. And I would say to people, if you’ve just got a house and you’re buying the other one out, if you’ve got a sensible level of education and you’re good administrative forms, have a go. If it doesn’t work, you can come back to lawyers It’s a fairly modest price to pay lawyers to do consent orders.

When to let children know you are planning to separate

Benjamin Bryant: And Heather just returning to children at the moment, is it better to let them know what’s happening early or should you wait until things get a bit more settled?

Heather McKinnon: Certainly my understanding from the child experts is that kids are aware of problems within their parent’s relationships way before parents think that they’ve understood what’s going on. Kids use emotional intelligence to feel the climate so they know when parents are anxious, they will smell it on them. And so the prevailing view is that you should be very honest with kids, in an age-related way, and tell them if you’re struggling. They need to be reassured. So mom and dad need constantly to give that reassurance. Mom and Dad are still here. We’re not going anywhere. We’re always going to be here for you. It’s not your fault. And absolutely tell them that you are not going to expose them to any sort of fighting. And I think kids get a lot of reassurance. If parents are able to say mom and dad are getting some counselling to help with the way that we’re doing this. And just to reassure kids that mom and dad are still in control, because the little ones just need certainty. And they need to know that in that whole process, they’re not going to be abandoned by either parent.

Benjamin Bryant: Heather hearing you speak about honest and age-appropriate way, took me back to the podcast we did with Miranda Montrone, and that was, of course, on surrogacy and adoptive parents. But we asked her the question, when would it be appropriate for parents of adopted or surrogate children to tell them about how they were conceived and born? And she said the same thing Normalizing it as early as you can, just in an age-appropriate way, because children, they do pick up on all the emotional stuff

Heather McKinnon: Yeah. I mean, I can’t believe the number of people I see that say we’ve been in separate bedrooms for three years, but the kids don’t think anything is going on. You know, they’ve gone from jumping on the bed with mom and dad cuddling every weekday to having two rooms. And they think the kids think it’s normal. Like, it is really important that parents get their heads out of their arse and understand that kids are real barometers of what’s happening in any household.

Heather’s best advice to a friend

Benjamin Bryant: Heather, if you have a long-term friend that just left a long relationship, what’s the one piece of advice that you give them?

Heather McKinnon: Take responsibility for your part in the failure of the relationship. The only way that you will move on in a healthy way is to accept that you had a part to play in it.  I think if you go into the corners where it’s always the other person’s fault, you will be led down a destructive path. So get to someone who can help you talk through what decisions you made in your adult life and why you need to make different decisions. It’s the hardest thing to take responsibility for your part, but it is the thing that will see you go forward in the strongest way.

Goodbye for now….

Benjamin Bryant: That was great, Heather, and I think we’ve managed to provide some valuable guidance for people coming face to face with that horrifying decision that it’s time to separate and turn our lives upside down.

Heather McKinnon: I agree Ben. I hope that what we’ve done this morning really helps people in the community are on the precipice.

Benjamin Bryant: And I’m pretty sure we will be recommending this episode to lots of our clients. And I hope that plenty of people who are not clients but need advice early will find this show. So just another reminder, if you are listening to this and you have friends or family who might be headed towards separation, please share this episode with them. You’ll be doing them a huge favour.

Benjamin Bryant: Next month, we’re going to be taking a very interesting turn in our conversation and we’ll be chatting with a private investigator. You may ask what a private investigator has to do with family law. First of all, sometimes people actually have to find their ex before they can finalise their divorce. And then there’s the whole issue of serving documents if things end up at court. So surprise, surprise, PI’s are quite often involved in family law matters. We are very excited to have Steve Wallace, the managing director of SWA Recovery and Investigation, join us on next month’s podcast. Not only will he have some great advice, we might also be able to persuade him to share some of his best private investigator stories. If you have any questions you would like us to put to Steve, please leave a message us on Facebook or email familymatters@bryantmckinnon.com.au. As always, a final reminder that we have a full transcript of today’s show, plus links to any resources mentioned available in the show notes on our website.

Benjamin Bryant: Goodbye for now. Stay safe. And we hope to have your ears again next month.

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