FAQ’s & Resources

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At BrightSide we don’t charge like other law firms do. We give you a quote for the work which needs doing much like a tradesman would. That quote is called a Scope. The amount in the Scope is all you will pay us for your separation to be finalised.

However, just like if you are building a house and you want changes after you have signed the contract there may be additional fees to pay if you want different work done, change your mind halfway through or don’t negotiate in good faith with a view to finding solutions and coming to an agreement.

Because we choose to do no court work, we have a clear idea of the process so we can control our expenses which keeps the cost to you down. Going to court is a huge unknown so the cost is also a huge unknown for both the lawyer and the client. Because of that no lawyer can give you an accurate price at the beginning of a court process.

We started BrightSide because we realised there is a better way for people to separate than just slugging it out in court.

Having to go through a court process is very stressful, very damaging to all your relationships and very expensive. And it may surprise you to know that the adversarial court process is not very nice for our BrightSide people as well.

So, we have chosen to do no court work because we feel it is the best option for our clients, for our BrightSide people and for society as well.

There are three reasons we charge for our initial consults –

One:    How much can you actually say in 15 minutes? There is very little chance that you can sum up your past and your wishes for the future in 15 minutes and once that 15 minutes is up you are on the clock. And you may not even realise it. Charging is also our way of being upfront. We want you to go into this process knowing exactly what you are in for. We are not trying to hook you in or get you signed up.

Two:      It means you can take as much time as you need. Most of our initial consults  go for up to 2 hours and can be quite emotional. The last thing you need in that process is to be watching the clock.

Three:     This is the most significant and valuable meeting we will have with you. It is where you get to tell us what is most important to you and where we formulate a strategy for you to achieve it.

What happens next depends on which package you have chosen.

If you choose the cheapest package the next step is for you to contact your ex – or their lawyer if they have one – and make them an offer, or respond to an offer they have already made to you which we will advise you on.

If you choose the middle or the top package we will do that negotiation for you.

Once an agreement has been reached and everyone is happy, you and your ex will sign it. Although it is still not legally binding, by signing it you are acknowledging that you agree to the deal as it will be presented to the court for approval.

We will then fill out what is known as a Form 11 and produce a schedule of your assets. If it is necessary we will also make preliminary contact with your superannuation fund’s.

Once completed the Form 11 is submitted to the court and if they accept it as fair and equitable it will be approved and become legally binding consent orders.

We then take those consent orders and submit them to your superannuation fund’s so they are legally able to transfer any agreed amounts.

And then you are done.

We hear this a lot. The first thing most people say to us is my ex won’t do it, there is no way this will work for me. We have been using this process for many years now and have helped hundreds of people, and pretty much all of them felt that way in the beginning. Our very experienced lawyers and FDRP mediators have time tested tricks and techniques to get people to the negotiation table. Even the family court admits that as few as 5% of separating couples are unable to negotiate and need a full court process with the other 95% getting some form of consent orders.

We don’t like to work with percentages for two reasons.

One: For nearly all our clients there are things which are very important – for example staying in the family home, staying in the same school district, having time to retrain for a new career or not giving up superannuation – and things which are less important. So, you may choose to negotiate a slightly lower “percentage” to get one of those things instead. At BrightSide we are very focused on what is most important to you and working to achieve those goal’s rather than simply fixing a percentage.

Two: It frames everyone’s thinking and the whole negotiation becomes about wins and losses and then it gets harder and harder to find good, creative solutions that achieve your goals.

But rest assured, the family court has your back and is very focussed on fairness and making sure that neither of you gets a bad deal, so they won’t approve any consent orders that are not fair and equitable.

You can DIY your separation if you want to and the Department of the Attorney General provides literature to guide you through it.

But there are some very good reasons not to

One:    it is quite complicated, and it is important you get it right. It is your financial future after all.

Two:    the process is an emotional one and you may find it difficult to negotiate without getting upset or angry. Having an uninvolved third party to negotiate for you may be a lot easier and produce a better result.

Three: what is a fair thing? We have many people come to us with a deal they have worked out between them which is very unfair and would never get through the court process.

Four:   what do you include in a separation. Do you go around and put post it notes on everything you want? Do you need to value grandma’s fine china you got as a wedding present?

Five:    you can’t divide your superannuation without a super splitting order from the courts which we can organise for you.

Six:      If you need to divide your assets you will have to pay stamp duty on any sale (selling the family home for example) unless you have court orders. The breakdown of a relationship with formal court orders means you are exempt from stamp duty.

Seven:  Once consent orders are approved by the court they are legally binding.  That means you have to follow them to the letter even if they are badly worded or if what you thought they meant is different from what they do mean. So like all legal contracts how they are drafted is very important.

All our prices include GST.

It is a common misunderstanding that the only way to separate is by going to court and getting a Judge to decide. In fact, as many as 80% of separating couples will use consent orders. Consent Orders – also called a Form 11 – are a contract negotiated between you and your ex defining how you will divide your assets. Once you have negotiated and signed your consent orders they are reviewed and approved by the Family Court and carry exactly the same weight as a court order. The advantage of consent orders is they are a fraction of the work and take a fraction of the time, so they cost a fraction of the amount of going through a full court process.

It is natural to feel that if you don’t go to court and fight for it, you will get a bad deal. But the reality is it is very unlikely you will get a better deal if you go through a full court process and in fact you may get a worse one because you give up all control and the judge decides what happens.

Also, the vast majority of separating couples don’t even begin the court process with 70% choosing negotiation. A further 25% – who do choose the court path – end up coming to agreement “on the court steps” in the days before their court hearing. The disadvantage of that path and agreeing at the 11th hour however is you have spent a huge amount of money, a huge amount of time and suffered a lot of stress for a similar deal you could have negotiated way back in the beginning.

The latest Family Court of WA figures show that on average a court case will take two years to be heard but can be up to five years. During that time you will have court appearances but those are mostly procedural, a sort of check-in to make sure the case is moving forward, towards an actual court decision. While you are in that process your separation is on hold until the judge gives a verdict.

Court is also nothing like the movies and you won’t necessarily get to have your say like they do in the movies. Court is very procedural and will only hear “evidence”, which is relevant to your case and can be proven. The court is not interested in “bad behaviour” and is not interested in how hard it was to be in a relationship with your ex. Since the advent of no-fault divorce in the 1970’s that kind of thing is not a part of the court process.

Coparenting can be a hard one and is often the source of a lot of stress.

Many couples can agree about their stuff but find it almost impossible to agree about the kids. In our experience the best method to sort out coparenting is mediation. In mediation everyone gets to have their say and everyone’s wishes are at least heard so the results tend to last longer. Mediation also allows you to negotiate and produce an agreement rather than a judge dictating what will happen. That agreement can also be adapted and will evolve as your kids grow up and as circumstances change. In contrast, going to court takes years and produces parenting orders which must be followed to the letter even as your kids grow up and their needs change. Parenting orders can also quickly become unworkable – after all what is right for a four year old doesn’t work so well for a twelve year old, or a sixteen year old – and if you want alterations to your orders you need to go back to court and start all over.

In family law a division of your assets always starts at 50/50 but doesn’t always end up there. Many things will be taken into account such as past contributions – both monetary and non-monetary – and future earning capacity. For example, if one of you has taken time out of the workforce to raise the kids your future earning capacity may be limited so that could be factored into any division or if one of you has ongoing health issues that may affect your ability to work in the future that could be factored in.

The law’s for defacto’s are basically identical to those for married people. To be classified as defacto however you need to have been living together in a relationship for more than two years. Proof of a relationship can be things such as children (obviously), shared bank accounts or lots of Instagram photos of you being a couple. People often get concerned that if they live with someone for two years they may become defacto by default but if you aren’t in a relationship you aren’t defacto no matter how long you live together.

You don’t technically need court orders to separate and divide your assets. If you can negotiate and you are happy to work it out yourselves that is a legally acceptable way to do it.

There are a few things to bear in mind however.

An agreement like that is not legally binding so if one of you doesn’t do what you agreed there isn’t much you can do about it.

Also, you can’t divide superannuation without a court order and superannuation is typically one of our bigger assets which may not be a problem if you both have similar balances.

You will also need to pay stamp duty on any sales because you need court orders for a stamp duty exemption.

This is one of the most common misunderstandings in family law. A divorce is simply the end of your legal marriage it does not divide you financially. You must be formally separated for 12 months before you can divorce but you don’t have to be separated for 12 months to divide your common assets. Consent orders are not a divorce they are only to separate you financially. Once you have court approved consent orders you are no longer monetarily joined and are not entitled to each other’s income and are not responsible for each other’s debt’s or expenses.

Once they are approved by the family court consent orders are court orders and must be followed just like any other court order. Anyone who doesn’t do what they agreed to in consent orders is in contempt of court.

Binding Financial Agreement or BFA is sort of like a pre-nup for when you are splitting up. We like to call them a post-nup. A BFA is a contract which you both sign that is outside the court system. BFA’s work very well where you have complicated financial affairs which make the division of your assets look unfair. For example, you may be part of a family business or a partnership which you would be unable to dissolve to give your ex their “share”. For a BFA to stand up in court, if it was challenged in the future, neither of you can be pressured in to signing it and both of you would need independent legal advice before signing. BFA’s are a complicated legal document so they are more expensive than the usual consent orders and depending on the complexity they are usually between $12,000 and $18,000

Divorce and dividing your assets (consent orders) are different things.

Divorce is the dissolving of your marriage and is a routine process in Australia nowadays. Technically the only reason to divorce is if you want to get remarried but there are also very good reasons to divorce. For example, if you passed away before you divorced your ex would have a claim on your estate as your legal spouse.

However, unless you go through a legal process to divide your assets (consent orders or a BFA) you are still financially tied together and still legally responsible for each other’s financial decisions and debt’s.

You don’t need to wait until you divorce to divide your assets you can do it when you separate, and you should do it when you separate.

Along with consent orders, BFA’s and Wills we also do divorces.

More questions?

Maybe one of these can help.

Separation or divorce is a big change and creates a lot of unknowns. So whether you are thinking about leaving, in the midst of sorting out how to split everything up, discussing who is going to look after the kids, or just wondering how two separate lives might look here are some ebooks and info sheets covering questions a lot of people in your situation have asked before.

And if you can’t find what you’re looking for or you have a question not answered here, drop us a line, give us a no obligation call or make an appointment to come in for a chat.

Or to book a free no obligation 15 minute Whats Next chat click this link

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