Family Law
If you are considering adopting a child, it is always a big decision. Adopting a child in New Zealand involves a clear legal process regulated by the Adoption Act 1955 and overseen by the Department of Internal Affairs (DIA). The process can be quite detailed and varies depending on whether you are adopting domestically (within New Zealand) or internationally. Here's an overview of the key steps for adopting a child in New Zealand:
1. Eligibility to Adopt
To adopt a child in New Zealand, you must meet certain criteria:
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Age: You must be at least 20 years old. If you're married or in a civil union, your partner must also meet this requirement.
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Residency: You must be a New Zealand citizen or a permanent resident. In some cases, non-citizens may also adopt if they meet specific requirements.
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Health and Stability: You must be in good health and able to provide a stable environment for the child.
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Financial Stability: While you do not need to be wealthy, you must be able to provide for the child’s needs.
2. Types of Adoption
There are several types of adoption, but the most common in New Zealand are:
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Domestic Adoption: This involves adopting a child from within New Zealand, often from birth or from the care system (foster care).
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Intercountry Adoption: If you are adopting a child from another country, this process will be more complex due to international laws and agreements.
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Whāngai Adoption: A traditional Māori practice where children are raised by extended family members. Whāngai is not formal adoption under New Zealand law but can still have legal implications.
3. Initial Steps
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Attend an Information Session: Before you begin the formal adoption process, you may be required to attend an information session provided by the Department of Internal Affairs (DIA). This is to help you understand the process, the challenges, and your responsibilities as an adoptive parent.
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Submit an Application: The next step is to submit an adoption application to the DIA. You'll need to provide personal details, background information, and reasons for wanting to adopt.
4. Home Study and Assessment
As part of the adoption process, you will need to undergo a home study. This includes:
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Interviews: You and your partner (if applicable) will meet with a social worker who will assess your suitability to adopt a child.
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Home Visits: A social worker will visit your home to assess the environment in which the child would be raised.
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Background Checks: You’ll be required to undergo police checks and provide references to ensure there is no history of child abuse or other issues that could impact your suitability as an adoptive parent.
5. Matching Process
Once you pass the assessment and are approved as adoptive parents, you will be matched with a child. For domestic adoptions, the matching process may involve children who are in foster care or children born for adoption.
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For intercountry adoptions, matching may involve coordinating with adoption authorities in the child’s home country.
6. Pre-Adoption Training
Before you are matched with a child, you may be required to attend pre-adoption training or parenting courses. This prepares you for the emotional and practical challenges of adoption.
7. Adoption Order
Once a child is placed in your care (whether from foster care or internationally), the final step is to obtain an Adoption Order from the Family Court. This legally establishes you as the child’s parent and grants you all parental rights and responsibilities.
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Foster Care Placements: If the child was previously in foster care, they may be placed with you on a temporary basis before the adoption is finalized.
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International Adoption: If adopting internationally, you will also need to comply with the laws of the child’s home country and any international treaties, like the Hague Convention on Intercountry Adoption.
8. Post-Adoption Support
Adoptive parents in New Zealand are entitled to post-adoption support, including counselling and assistance with the challenges that can arise as the child adjusts to their new home.
9. Legal Rights and Responsibilities
Once the adoption is finalized, you have full parental rights and responsibilities for the child, just like biological parents. The child becomes your legal child, and the biological parents' rights are usually terminated unless they retain certain rights.
Important Considerations:
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Cultural Sensitivity: Adoption in New Zealand can be deeply tied to Māori culture, especially in the case of whāngai adoptions. It’s important to be aware of and sensitive to the child’s cultural background.
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Open vs. Closed Adoption: Some adoptions may be open, meaning that there is contact between the child and their biological parents, while others are closed. The type of adoption can impact your relationship with the birth parents.
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Costs: Adoption in New Zealand is generally low-cost for domestic adoptions, but intercountry adoption may involve more expenses due to legal fees, travel, and other associated costs.
Helpful Resources:
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Department of Internal Affairs (DIA): DIA Adoption Services
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Adoptive Families New Zealand: A helpful organization that provides information and support for adoptive families.
Adopting a child is a life-changing and rewarding experience, but it’s important to understand that it can take time and effort. Being well-prepared and educated about the process can make the transition smoother for both you and the child. If you would like further information about the process contact me on pd@blomfieldlegal.com or call me on 0220685117.
Advocacy in the family court in New Zealand is typically conducted by legal professionals (lawyers), but there are also options for people to represent themselves. Here’s a breakdown of how advocacy is conducted and whether you’ll need a lawyer:
1. Role of Advocacy in Family Court
Advocacy in the family court involves presenting your case, arguing on your behalf, and making legal submissions that support your position. This can include advocating for the following matters:
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Child custody and access arrangements: For example, who the child will live with or how visitation is arranged.
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Domestic violence: Applications for protection orders or defending against them.
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Property division: When a couple separates, determining how assets and liabilities will be divided.
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Child support: Disputes over the financial support of children.
Advocacy in these matters can be done by yourself (as a litigant in person) or through a lawyer who represents your interests.
2. Do You Need a Lawyer?
While it’s not mandatory to have a lawyer in the family court, it’s often recommended. Here are some things to consider:
When You Might Need a Lawyer:
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Complex issues: If the case involves complicated legal questions (e.g., high-value property division, international issues, allegations of abuse), having a lawyer ensures your case is presented effectively.
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Emotional stress: Family court proceedings can be emotionally charged, and a lawyer can help you navigate the process more effectively.
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Legal advice: Lawyers can provide you with guidance on your rights, legal procedures, and likely outcomes, which can help you make informed decisions.
When You Might Represent Yourself:
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Simple cases: If the case is straightforward (e.g., you agree with the other party on child care arrangements), you may be able to represent yourself.
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Cost considerations: Legal fees can be expensive, and if you cannot afford a lawyer, you may decide to represent yourself.
Legal Aid:
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If you cannot afford a lawyer, you may qualify for legal aid. Legal aid is available for people who meet certain income and asset criteria, and it can help cover the cost of a lawyer in family court matters.
Lawyer’s Role:
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Prepare documents: Lawyers can help you prepare court documents, such as applications, affidavits, and submissions.
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Court representation: Lawyers can represent you in court, argue your case, and cross-examine witnesses on your behalf.
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Negotiation: A lawyer can also assist with settlement negotiations, whether through direct discussions or mediation, which is often a step in the family court process.
3. Steps in Family Court Advocacy:
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Filing an application: You start by filing an application (e.g., for custody, protection orders, etc.). You may need to fill out forms and submit supporting documentation.
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Mediation: The family court often encourages mediation to resolve disputes before going to trial. This is where both parties try to agree on a solution with the help of a mediator.
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Hearing: If mediation doesn’t work or if the matter is urgent, the case will go to a hearing where both parties present their case before a judge. Advocacy is crucial at this stage.
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Final order: After considering the evidence, the judge will make a decision, which may involve a formal order (e.g., a parenting order, property order, or protection order).
4. Self-Representation in Family Court:
If you decide to represent yourself, you will need to ensure that you are familiar with the family law procedures and any legal principles relevant to your case. The court may offer some support in terms of guidance, but they cannot give legal advice. Community law centers or Family Legal Advice Services can also provide free or low-cost advice to help self-represented people.
Advantages of Self-Representation:
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Cost savings: You avoid the legal fees associated with hiring a lawyer.
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Personal involvement: You have direct control over the decisions and strategy of your case.
Challenges of Self-Representation:
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Complexity: Family law can be complex, and you may not know all the legal terms, rights, or procedures.
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Emotional toll: Representing yourself in emotionally charged matters, such as child custody disputes, can be very stressful.
Conclusion:
While you don’t need a lawyer in family court, having one can make the process much easier and increase your chances of a favorable outcome, especially in complicated or high-stakes matters. If cost is a concern, you can check if you’re eligible for legal aid or seek advice from community law centers to help you understand your options. Alternatively you can contact me on pd@blomfieldlegal.com
Calderbank v Open Offer
A Calderbank offer and an open offer are both types of settlement offers used in legal disputes, but they have different implications and purposes. Here are the key differences:
Calderbank Offer
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Context: A Calderbank offer is a settlement offer made in a legal dispute, often in the context of civil litigation.
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Confidentiality: It is made on a "without prejudice" basis, meaning the offer cannot be referred to in court if the case goes to trial. However, the existence of the Calderbank offer and its terms can become relevant when it comes to costs at the end of the trial.
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Purpose: The main purpose of a Calderbank offer is to encourage settlement and protect the offeror's position regarding costs. If the other party does not accept the offer and the case proceeds to trial, the offeror may be entitled to recover costs if the court decides the outcome is no better than the offer they made.
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Consequences: If the other party rejects a Calderbank offer and does worse in the court’s judgment (in terms of the result), the court can order the rejecting party to pay the offeror's costs from the time of the offer onward.
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Formal: It is typically made in writing and often accompanied by a statement specifying the offer is a Calderbank offer.
Open Offer
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Context: An open offer is also a settlement offer but is generally made without any formal confidentiality or conditions, meaning it can be referred to in court and forms part of the public record.
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Confidentiality: Unlike a Calderbank offer, an open offer is not made without prejudice. This means it can be brought up in court if the case proceeds, which can potentially affect the case or the outcome.
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Purpose: The main goal of an open offer is simply to settle the matter, without the added emphasis on costs or the legal consequences that apply to a Calderbank offer.
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Consequences: There are no automatic cost implications tied to an open offer. The court will consider the offer when making its judgment, but rejecting an open offer does not have the same cost-shifting effect as a Calderbank offer.
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Formal: An open offer is less formal than a Calderbank offer, as it doesn't require the specific legal language used to invoke cost consequences.
Summary of Key Differences:
Essentially, a Calderbank offer is a strategic tool with a focus on encouraging settlement while protecting costs, whereas an open offer is a more straightforward attempt to settle, without the same legal implications for costs.
Contracting out agreements in New Zealand family law are legally recognized agreements between parties (usually spouses or de facto partners) that set out how their property will be divided if their relationship ends, or in the event of death. These agreements are typically used to provide clarity and certainty about property rights before or during a relationship, and are often referred to as "pre-nuptial agreements" when they are entered into before marriage, or "relationship property agreements" in other contexts.
Key Aspects of Contracting Out Agreements:
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Relationship Property Act 1976: In New Zealand, the division of property when a relationship ends is governed by the Property (Relationships) Act 1976. The default rule is that relationship property is split 50/50 between the partners, but this can be altered through a contracting out agreement. This includes both property acquired during the relationship and, under certain circumstances, property brought into the relationship.
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Contracting Out Agreement: This is a written contract that allows partners to agree to different terms regarding property division, such as:
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Waiving the 50/50 division: The partners may decide on a different division of property or may even agree that certain property will not be considered "relationship property."
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Inheritance and gifts: The agreement can specify how property or assets (such as an inheritance) will be treated if one partner inherits money or assets during the relationship.
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Legal Requirements:
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The agreement must be in writing and signed by both parties.
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Each party must receive independent legal advice before signing, ensuring that they understand their rights and the implications of the agreement.
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The agreement must be fair at the time it is signed, and must not be seen as unconscionable (unreasonably one-sided or unfair).
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When to Use: Contracting out agreements are often used in scenarios where:
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There is a significant disparity in wealth between the parties.
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One party wants to protect assets they brought into the relationship (e.g., business assets, inherited wealth).
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The parties want certainty in case of separation, to avoid potential disputes over property division.
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Are They Worth It?
The decision to enter into a contracting out agreement depends on the specific circumstances of the couple and their financial arrangements. Here are some factors to consider:
Pros:
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Clarity and Certainty: By agreeing upfront on how property will be divided, both parties know where they stand in case of a breakup, which can help avoid contentious and expensive disputes later.
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Protection of Individual Assets: It can protect assets that one partner brings into the relationship, such as business interests, family inheritances, or savings accumulated before the relationship.
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Prevent Unfair Claims: It can prevent one partner from making an unfair claim on the other's property, especially in relationships where one party has much more wealth or assets.
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Flexibility: It provides couples with the flexibility to tailor the agreement to suit their specific needs, rather than relying solely on the standard 50/50 division under the Property (Relationships) Act.
Cons:
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Potential for Unfairness: If one partner is pressured into signing the agreement or doesn't fully understand its implications, the agreement might later be challenged in court for being unconscionable or unfair.
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Changes in Circumstances: Life changes such as children, changes in income, or significant changes in the relationship dynamics might make the agreement feel less relevant or fair over time.
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Emotional Considerations: Some people may feel uncomfortable with the idea of entering a relationship with a "backup plan" in case things go wrong, which could affect relationship dynamics.
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Legal Costs: The cost of getting legal advice and drafting the agreement can be a barrier for some couples.
When Are They Most Useful?
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Before Marriage or Civil Union: They provide clarity about property rights from the outset, especially if there are significant assets or businesses involved.
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During a Relationship: If the couple's financial circumstances change significantly or if there is a substantial difference in wealth, they can be helpful to avoid future disputes.
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For Protection of Business or Inherited Wealth: They are often used by people who own businesses or who have inherited assets that they want to protect from being considered relationship property.
Conclusion
Whether contracting out agreements are "worth it" depends largely on the complexity of the relationship and the financial situation of the parties involved. They are a valuable tool for individuals who want to ensure their assets are protected or who want to avoid the uncertainty of the standard division rules under New Zealand’s property law. However, they require careful consideration, legal advice, and an understanding of how they might be perceived and enforced in the future.
If you're considering a contracting out agreement, it's advisable to consult a family law lawyer in New Zealand to understand how such an agreement could apply to your specific situation. I can assist you so please contact me on pd@blomfieldlegal.com
Divorce in New Zealand
n New Zealand, getting a divorce is a relatively straightforward legal process, but it does require some formal steps. Here's a general guide to help you understand the process and whether you need a lawyer:
1. Eligibility for Divorce
To be eligible for a divorce in New Zealand, the following conditions must be met:
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You must have been married for at least two years. If the marriage lasted less than two years, you generally cannot apply for a divorce unless there are special circumstances, such as domestic violence.
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You must be living separately for at least two years. You and your spouse must have lived apart for two years (either physically or in some cases, emotionally), and this is a requirement under New Zealand law.
2. Grounds for Divorce
New Zealand is a "no-fault" divorce jurisdiction, meaning that you do not need to prove that one spouse is at fault. The only ground for divorce is irreconcilable differences (essentially, the breakdown of the marriage). If you have been separated for two years, you can apply for a divorce without needing to prove that either party was responsible for the breakdown.
3. Filing for Divorce
The process of filing for divorce in New Zealand involves the following steps:
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Complete the divorce application: This is usually done through a form called an Application for Divorce (Form 5), which can be completed online through the New Zealand Ministry of Justice website or submitted at your local Family Court.
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Submit the application: You will need to submit your completed application and a copy of your marriage certificate to the Family Court. There is a fee for filing, which varies depending on the court.
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Serve the application to your spouse: If you are the applicant, you must send the divorce papers to your spouse. If your spouse agrees to the divorce, they do not need to appear in court. If they disagree or cannot be found, the court process might take longer.
4. Court Hearing
In most cases, a court hearing is not required, especially if both parties agree to the divorce and there are no children or complex financial matters involved. The court will generally issue a divorce order after considering the application. If there are children under the age of 16, the court will check that proper arrangements have been made for their welfare and care, though you do not need to attend a hearing unless there is a dispute.
5. Finalization
Once the court processes the application, a divorce order will be granted, usually about 1-3 months after the application is made. The divorce is finalized on the date the order is made, and you will receive a final divorce decree.
Do You Need a Lawyer?
You do not need a lawyer to file for a divorce in New Zealand if the divorce is uncontested and straightforward (for example, when both parties agree to the divorce and there are no issues regarding children, property, or finances). The process is designed to be accessible for individuals to handle on their own.
However, you may want to consider legal advice or representation in the following situations:
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Disputes about property, finances, or debts: If there is property to divide or financial matters to sort out, having a lawyer can help protect your interests and ensure that any agreement is legally binding.
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Child custody and care: If there are children involved and you and your spouse cannot agree on custody or care arrangements, a lawyer can help mediate or represent you in court.
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Complex legal issues: If your case is complicated, for example, if one of you is overseas or you are dealing with issues such as domestic violence, a lawyer can provide essential guidance and support.
In summary, while it's not required to have a lawyer to get a divorce in New Zealand, consulting one can be beneficial if there are disputes or if you need assistance with the legal complexities related to property division or child custody.
Let me know if you'd like more specific details on any part of the process, pd@blomfieldlegal.com
Children in New Zealand, like those in other countries, can experience a range of emotional, psychological, and social impacts as a result of their parents' divorce. However, the specific effects can vary depending on several factors, including the child's age, the level of conflict between the parents, and how well the parents manage the transition.
Common Effects of Divorce on Children in New Zealand:
1. Emotional Impact
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Feelings of sadness or grief: Children may feel a sense of loss or sadness over the breakdown of the family structure. Younger children may not fully understand why their parents are separating, while older children may feel betrayed or confused by the situation.
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Anxiety and insecurity: Divorce can cause children to feel anxious about their future, changes in living arrangements, and the stability of their relationships with both parents.
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Guilt and self-blame: Some children may blame themselves for the divorce, believing that their behavior or actions contributed to the separation.
2. Behavioral Changes
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Regressive behavior: Younger children, in particular, might regress to earlier behaviors such as bed-wetting, thumb-sucking, or clinging to their parents.
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Aggression or withdrawal: Children may express their emotions through outbursts of anger or withdrawal from social interactions. They might have difficulty coping with the changes in their family environment and can act out in school or at home.
3. Academic Performance
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Divorce can impact a child's academic performance, especially if they are struggling with emotional turmoil. They may have difficulty concentrating, participating in class, or completing assignments. The stress of adjusting to the new family dynamic can lead to a decline in grades or a loss of interest in school.
4. Impact on Relationships
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Children of divorced parents may experience difficulties in their own relationships as they grow older. They may have trust issues or fear of abandonment, and may struggle with forming long-term relationships as a result of the instability they experienced during their parents' divorce.
5. Co-Parenting and Conflict
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The level of conflict between parents after the divorce is a key factor in how children are affected. High levels of conflict, including verbal arguments, custody disputes, or emotional manipulation, can cause more stress and harm to children. Conversely, when parents can co-parent effectively and maintain a civil relationship, the negative impact on children is generally less severe.
6. Custody and Living Arrangements
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In New Zealand, custody arrangements (referred to as "care" arrangements) are often negotiated in mediation or determined by the Family Court. Children might have to adjust to living in two homes, which can create additional challenges, especially if they are not happy with the arrangement or feel torn between their parents.
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Shared care: New Zealand has a strong emphasis on shared care, where both parents are expected to remain actively involved in their children's lives post-divorce. While shared care can help children maintain strong relationships with both parents, it can also be difficult for children if the parents are not cooperative or if there is a lot of tension between them.
Positive Outcomes:
While divorce can be difficult for children, it's important to note that children can also adjust and thrive in the long run, particularly when parents:
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Minimize conflict and prioritize their children's well-being.
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Communicate openly and honestly with their children about the changes.
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Ensure that children continue to have strong and positive relationships with both parents.
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Seek support from counselors or psychologists if necessary.
Legal and Support Systems in New Zealand:
New Zealand has a range of support services and legal frameworks designed to help children and families navigate divorce:
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Family Court: In cases where parents cannot agree on care arrangements, the Family Court can intervene to determine what is in the child's best interests.
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Family Dispute Resolution (FDR): A government-funded mediation service that helps parents resolve disputes over parenting arrangements outside of court.
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Counselling and therapy: Many children benefit from counseling services to help them process their feelings and cope with the changes in their family life. The government and various non-profit organizations provide support services for children and parents.
In summary, while divorce can significantly impact children in New Zealand, the overall effects depend largely on how the divorce is handled by the parents, the level of conflict involved, and the emotional and practical support available to the child. Children who have stable, supportive environments post-divorce tend to fare better in the long term.
Mediation in New Zealand
In New Zealand, mediation plays an important role in resolving family disputes, especially in family law matters such as child custody, guardianship, access arrangements, and property division. The process is designed to help parties reach a mutually agreeable solution without going to court. Here’s an overview of how mediation works within the family law system in New Zealand:
1. What is Mediation in Family Law?
Mediation is a voluntary and confidential process where a neutral third party, called a mediator, helps individuals or families discuss their issues and try to reach a mutually acceptable solution. The mediator does not make decisions for the parties, but facilitates communication and negotiation to help them resolve their dispute.
2. When is Mediation Used?
Mediation is often used in situations such as:
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Child Custody and Access: Parents or guardians involved in disputes over the care arrangements for their children.
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Property and Financial Disputes: Dividing property or financial matters between parties after a relationship breakdown.
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Guardianship: Disagreements over decisions regarding the care and upbringing of children.
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Family Violence: Mediation may be less suitable in cases involving family violence. In such cases, other forms of support and safety measures are prioritized.
3. Family Dispute Resolution (FDR)
In New Zealand, Family Dispute Resolution (FDR) is the formal process that applies to many family disputes. FDR is used in matters involving children (such as custody and care) and is mandatory before proceeding to court unless there are exceptions (such as urgent cases or allegations of family violence).
Steps in Family Dispute Resolution:
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Referral to FDR: If parents or guardians cannot agree on issues related to the care of children, they are required to attend FDR before applying to the Family Court. This referral can come from a lawyer, social worker, or the Family Court itself.
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FDR Mediation Sessions: Once referred to FDR, both parties meet with a qualified mediator. This can be a Family Dispute Resolution provider. The mediator helps guide the conversation, but it is up to the parties to reach an agreement. The mediator is impartial and will not take sides.
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Outcome: The goal of FDR is to reach a resolution that both parties can agree on. If an agreement is reached, it can be put in writing and made legally binding. If no agreement is reached, the mediator may issue a certificate, which then allows the parties to take the dispute to court.
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Confidentiality: The mediation process is confidential, and anything said during mediation generally cannot be used as evidence in court if the matter proceeds there.
4. Mediation in Property Disputes
For disputes over property or financial matters, mediation may also be used, particularly when parties wish to avoid the time, cost, and emotional toll of going to court. This type of mediation can occur voluntarily or after a referral from the Family Court.
5. Exceptions to Mediation
Mediation may not be suitable or required in certain situations, including:
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Urgent cases (e.g., immediate threats to the safety of children).
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Family violence: If there are concerns about abuse, the mediator will assess the situation to determine if mediation is appropriate, as safety is the top priority.
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Lack of capacity: If one party is unable to participate effectively due to mental health issues, for example, mediation may not be suitable.
6. Role of the Mediator
Mediators in family law disputes are trained professionals, often with backgrounds in law, social work, or psychology. They are neutral and do not offer legal advice. The mediator’s role is to:
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Facilitate communication between the parties.
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Help identify the underlying issues and interests.
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Guide the discussion towards a possible agreement.
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Help the parties explore options for resolving their dispute.
7. Legal Support in Mediation
While mediation is a non-adversarial process, each party may have legal representation if they choose. Lawyers can offer advice before and after mediation, and help draft formal agreements once a resolution is reached. However, it is not a requirement to have a lawyer involved in the process.
8. The Outcome of Mediation
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Agreement: If an agreement is reached in mediation, it may be recorded in a written agreement, which can be made legally binding if both parties agree to it.
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No Agreement: If mediation fails to resolve the dispute, the mediator will issue a certificate allowing the parties to take the matter to the Family Court for a formal hearing.
9. Benefits of Mediation
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Cost-effective: Mediation can be much less expensive than court proceedings.
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Faster: Disputes can often be resolved more quickly through mediation than through the court system.
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Confidential: Mediation sessions are private, and the details of the discussions are not made public.
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Control: The parties retain control over the outcome, unlike in court, where a judge makes the decision.
10. Family Court Involvement
If mediation does not lead to a resolution, the dispute may be referred to the Family Court. The court will make a binding decision, which may be based on the best interests of the children involved or on the legal rights of the parties. However, Family Court is often seen as a last resort because it can be more adversarial, time-consuming, and expensive.
Conclusion
Mediation in New Zealand family law is an effective way to resolve disputes, particularly those related to children and property, without resorting to the formalities of the court system. Through Family Dispute Resolution (FDR), parties are encouraged to work together to find a solution in a collaborative manner, with the help of a trained mediator. While not all disputes are suitable for mediation, it is generally viewed as a preferable first step before pursuing litigation. Please contact me on pd@blomfieldlegal.com
When it comes to divorce, the type of lawyer you hire can have a significant impact on the outcome of your case. Divorce lawyers typically specialize in various approaches and may have different strategies based on their style and the specific needs of their clients. Below are some common types of divorce lawyers and what they do, along with an explanation of whether an "aggressive" lawyer is always the best choice.
Types of Divorce Lawyers
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Collaborative Divorce Lawyers
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Approach: Collaborative divorce lawyers are focused on helping spouses reach a mutual agreement without going to court. This approach involves both parties hiring attorneys who are trained in collaborative techniques, and they work together to negotiate terms related to property division, child custody, and other issues.
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Best for: Couples who are committed to resolving matters amicably and want to maintain a cordial relationship post-divorce (especially important if children are involved).
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Mediation Lawyers
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Approach: A mediation lawyer is a neutral party who helps facilitate discussions between the spouses to work out a divorce settlement. The lawyer doesn't take sides but rather aids in communication and problem-solving. In some cases, a divorce lawyer may also be trained as a mediator, but they can also assist in an ongoing mediation process.
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Best for: Couples who want to avoid litigation and prefer a more guided negotiation to reach a fair settlement.
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Litigation Lawyers
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Approach: Litigation divorce lawyers represent clients in court. They take a more adversarial approach, aiming to advocate strongly for their client's position, which may involve aggressive tactics and legal maneuvers to ensure the best possible outcome for their client.
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Best for: Couples who cannot agree on key issues (such as custody, assets, or support) and need a lawyer to advocate for their interests in court. Also appropriate for cases where there’s a history of abuse, or one spouse is being unreasonable in negotiations.
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Aggressive Divorce Lawyers
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Approach: An aggressive divorce lawyer is known for a confrontational and highly assertive style. They might take a more "battle-ready" stance, pushing hard for their client’s interests and often using tough tactics to secure a favorable outcome. This approach might include using legal pressure, filing motions frequently, and making strong demands during negotiations.
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Best for: Situations where one spouse is likely to engage in manipulation, deceit, or obstruction. It may also be beneficial in cases involving significant disputes over finances, property, or custody.
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Negotiation-Focused Lawyers
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Approach: These lawyers aim to resolve disputes through negotiation, prioritizing a fair settlement for both parties. They are less confrontational than litigation or aggressive lawyers but are skilled in finding middle ground.
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Best for: Clients who want to avoid lengthy and costly litigation but still need a lawyer who is assertive enough to advocate for their best interests during negotiations.
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Unbundled Divorce Lawyers
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Approach: Unbundled services, also called limited scope representation, involve hiring a lawyer to handle only certain parts of the divorce process. For example, you may hire a lawyer to review a settlement agreement or represent you at a single court hearing, rather than having full representation throughout the entire process.
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Best for: Individuals who want to save money and only need help with specific aspects of the divorce process.
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Family Law Specialists
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Approach: Some lawyers are specialized in family law, which includes divorce, child custody, spousal support, and property division. These lawyers have expertise in the nuances of divorce law and are up-to-date on legal precedents and changes in family law.
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Best for: Those who want a lawyer with a deep understanding of all family law issues and who can provide comprehensive guidance on divorce matters, particularly in complex cases.
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Is It Better to Have an Aggressive Lawyer?
It depends on your situation. Having an aggressive lawyer can be beneficial in certain circumstances, but it's not always the best choice for every divorce. Here's a breakdown of when it might work—and when it might backfire:
When an Aggressive Lawyer Might Be Helpful:
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Complex or High-Conflict Cases: If you and your spouse are unlikely to agree on key issues (such as custody, alimony, or asset division), an aggressive lawyer can help ensure you’re getting a fair deal. They will be more proactive in filing motions and pushing for what you’re entitled to.
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Dealing with a Difficult or Uncooperative Spouse: If your spouse is being manipulative, dishonest, or unreasonable, an aggressive lawyer might be necessary to fight for your rights and protect your interests.
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High Stakes: If there are significant financial assets or child custody issues at stake, an aggressive lawyer can help protect your long-term interests.
When an Aggressive Lawyer Might Backfire:
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If You Want to Minimize Conflict: If you’re hoping for an amicable separation or if you're on good terms with your spouse, having an aggressive lawyer can escalate the conflict unnecessarily, prolong the divorce, and make negotiations harder.
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If You’re Seeking a Quick Resolution: Aggressive lawyers tend to prolong litigation, which can drive up legal fees and extend the emotional toll of the divorce. If your primary goal is a swift, peaceful resolution, an aggressive lawyer may not be the best fit.
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Potential Negative Impact on Children: If children are involved, an aggressive approach might create a more contentious environment. If both parties are already stressed, aggressive tactics might make it harder for both sides to maintain an effective co-parenting relationship post-divorce.
Conclusion
The right lawyer for you depends largely on your goals and the nature of your divorce. If your divorce is straightforward and you're aiming for a fair, mutual agreement, a collaborative or mediation-focused lawyer may be a better fit. However, if you're dealing with a high-conflict divorce where one party is unwilling to cooperate, an aggressive or litigation-focused lawyer may be necessary to protect your interests.
It's important to consider your personal circumstances, your long-term goals (such as co-parenting with your spouse, or maintaining a financial stake in certain assets), and whether you want to avoid prolonged conflict. A lawyer with a balanced approach—who is assertive when needed but open to negotiation—might be the best option for most people. Please contact me on pd@blomfieldlegal.com.
Types of Mediation
In family law, mediation is commonly used to help resolve disputes between parties without the need for litigation. Mediation allows couples or families to reach a mutually acceptable agreement, often with the help of a neutral third party (the mediator). There are several types of mediation techniques used in family law, each with its own approach and structure. Here are some of the most common ones:
1. Facilitative Mediation
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Description: In facilitative mediation, the mediator facilitates communication between the parties and helps them clarify their issues and interests. The mediator does not offer advice or make decisions for the parties. Instead, they encourage open dialogue to help the parties identify mutually acceptable solutions.
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Use: Common in divorce, custody, and visitation disputes where both parties are willing to negotiate but may need help in managing their communication or reaching a resolution.
2. Evaluative Mediation
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Description: In evaluative mediation, the mediator takes a more active role in assessing the strengths and weaknesses of each party’s case. The mediator may offer an opinion about what the likely outcome would be in court or suggest solutions based on legal standards. This type of mediation tends to focus more on the legal aspects of the dispute.
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Use: Often used in cases where there is a significant imbalance of power or when parties are at an impasse, and the mediator’s legal expertise can guide them toward a resolution.
3. Transformative Mediation
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Description: Transformative mediation focuses on the emotional aspects of a dispute and aims to help the parties change their relationship dynamics. The goal is to empower each party to express their needs and feelings while also fostering empathy and understanding between them. This technique is less about reaching a specific outcome and more about changing the way parties interact with one another.
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Use: Particularly useful in high-conflict family situations, such as custody battles, where ongoing communication and improved relationships between the parties are important for future interactions.
4. Narrative Mediation
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Description: Narrative mediation involves both parties telling their stories to each other and the mediator. The mediator helps them reframe the issues from different perspectives and often encourages the parties to think about the problem in a way that makes room for resolution and healing. This type of mediation emphasizes the power of storytelling and the creation of a new shared narrative.
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Use: Common in cases involving long-standing emotional issues or when the parties feel entrenched in their positions. It can be effective in cases of high emotional distress, such as divorce or custody disputes.
5. Child-Focused Mediation (Child-Inclusive Mediation)
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Description: In child-focused mediation, the mediator may involve the children in the process, either by meeting with them directly or through a child consultant. The goal is to better understand the children’s needs, preferences, and emotions in relation to custody or parenting time arrangements. The mediator helps the parents consider the child's perspective when making decisions.
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Use: Particularly useful in custody and visitation disputes, where the best interests of the children are paramount.
6. Online or Virtual Mediation
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Description: With advancements in technology, online mediation (also called virtual mediation) allows parties to participate in mediation sessions via video conferencing or other online platforms. The mediator guides the process remotely, and the parties may or may not be in the same location.
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Use: Useful for families who live far apart, have scheduling conflicts, or need an alternative to in-person mediation due to logistical issues or health concerns.
7. Co-Mediation
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Description: Co-mediation involves two mediators instead of one. The mediators may have different areas of expertise (e.g., one might be a family law attorney, and the other a mental health professional). This approach allows for a more comprehensive mediation process, with both legal and emotional aspects being addressed simultaneously.
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Use: Effective in complex or high-conflict situations where multiple perspectives are beneficial, such as in divorce with complex financial issues or family dynamics.
8. Interest-Based Mediation
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Description: In interest-based mediation, the mediator helps the parties identify their underlying interests (the "why" behind their positions) rather than focusing solely on their stated demands. This helps the parties move from positions to interests and find creative solutions that satisfy the needs of all involved.
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Use: Common in divorce or child custody cases where both parties may have overlapping interests, such as ensuring the well-being of children, financial stability, or maintaining a respectful co-parenting relationship.
9. Conflict Coaching
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Description: Conflict coaching is a one-on-one process where a mediator or coach helps a party navigate a conflict, develop negotiation strategies, and prepare for mediation. Although not strictly a type of mediation, it often complements mediation by helping one party (or both) improve their communication skills and increase their readiness to engage in mediation.
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Use: Used when a party needs additional support to improve their communication skills or resolve individual issues before participating in joint mediation.
10. Shuttle Diplomacy
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Description: In shuttle diplomacy, the mediator meets separately with each party in different rooms and shuttles back and forth to communicate offers and responses. This technique is used when direct communication between the parties is difficult, or when the parties are unwilling or unable to meet face-to-face.
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Use: Often used in highly contentious or emotionally charged family law disputes, such as in divorce or custody cases, where the parties may have difficulty interacting directly.
11. Collaborative Law Mediation
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Description: Collaborative law mediation involves both parties and their respective attorneys working together in a cooperative process to resolve disputes without going to court. The goal is to find solutions through open communication, with each party having legal representation, and the mediator facilitates the process.
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Use: Ideal for divorce, custody, or financial disputes where both parties are committed to avoiding litigation and want a collaborative approach to problem-solving.
Conclusion:
The choice of mediation technique depends on the nature of the family dispute, the preferences of the parties, and the complexity of the issues at hand. Mediators often tailor their approach to suit the specific needs of the family and the issues they face. The key to successful mediation in family law is the ability to facilitate communication, foster mutual understanding, and help the parties reach a fair, workable agreement. Please contact me at pd@blomfieldlegal.com for further information about this subject.
Separation with One Lawyer
I offer a service called “Separation with one lawyer” which is designed for couples that want to separate in a cost-effective manner and still have a reasonable degree of cooperation between them. Essentially both parties will come into my office, and I will work for both people and provide unbiased legal advice about what would likely happen at court with property and children. I draft up documents based on your collective instructions and then both people go to separate lawyers to sign off on the agreement which is filed in the Family Court. I would not be allowed to represent either person in court if an agreement was not reached. For this to work a few conditions which are listed below need to be observed.
1. Agreement to Work Together
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Both parties must agree to work cooperatively. This often involves open communication, transparency, and a shared goal of resolving issues amicably.
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A single lawyer can only represent one person, even if the separation is amicable. The other party may choose to proceed without legal representation but should understand the risks involved but for an agreement to be finalised independent legal advice is required.
2. Uncontested Separation or Divorce
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If both parties agree on key issues (e.g., division of assets, custody arrangements, support), a single lawyer can draft the necessary agreements or file paperwork for an uncontested divorce.
3. Mediator or Neutral Third Party
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If the lawyer serves as a neutral mediator, they cannot provide legal advice to either party but can help draft an agreement based on discussions.
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Both parties may need to consult independent lawyers to review the agreement before signing to ensure their rights are protected.
4. Document Preparation
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The lawyer can help prepare and file legal documents, ensuring compliance with local laws and court requirements.
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This is typically less costly than hiring two separate lawyers.
5. When It’s Not Advisable
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If there’s a significant power imbalance or history of family violence and abuse, a single-lawyer approach may not protect the more vulnerable party.
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Complex financial or custody issues might also require independent legal advice for both parties.
This method of divorce and separation has been shown to be far more cost effective than traditional divorces that use traditional litigation methods.
Please contact me at pd@blomfieldlegal.com.