Most Common Mistakes When Divorcing

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Most Common Mistakes When Divorcing

Divorce is a challenging process. Most people find it draining and painful. We identified 10 common mistakes that people generally make during divorce proceedings. By avoiding these, we hope to minimize the pain and suffering that the divorce process inevitably causes.

1 Letting your emotions dictate the process

Ending a relationship built with love and devotion will unavoidably involve emotions. However, letting your emotions dictate the process would only divert the focus from the main solutions, which usually are children and finances.

Just like planning your wedding, divorce should also be planned. You should talk to professionals with relevant experience as soon as you sense that the relationship is not working, even though conciliation may not always be successful. This is not only to protect your interest, but also to help you handling the process.

2 Surprising the spouse with the divorce papers

The first question that we often ask our clients in the first consultation is: does your spouse sees it coming, and if not, how would he/she react to your divorce request? The reason behind this question is whether it is feasible for the parties to resolve the issues sensibly, instead of letting their own emotions drive the process, which would often prolong things further.

3 Not engaging a lawyer to represent you

We have come across some clients who prefer to handle the process themselves, in most cases ending up spending a lot of time on the process itself without achieving much in the final resolution.

Court papers are designed for effective resolution of underlying issues. Not knowing how to fill them in properly would not only be wasting a lot of time, but especially prejudice your own interest.

4 Refusing to face the other party and communicate sensibly

Everyone knows that divorce often happens after ugly fights. After all, divorce happens after the marriage has broken down irretrievably. However, clients cannot expect to hide behind legal proceedings and let the Court decide all issues, because the court process in Hong Kong is designed in a way to allow the parties to resolve the issues themselves through negotiation and settlement. Therefore, court proceedings should not be used as a shield against the underlying issues that must ultimately be resolved among the parties, otherwise a lot of time and money will be spent which would ultimately dwindle the total matrimonial pot.

This is particularly the case when children arrangements cannot be agreed upon, as the Court would order the parties to be assisted by a parenting coordinator, who is a professional experienced in helping estranged couples in communicating among themselves on dealing with children’s issues during divorce proceedings and in the future. Communications will ultimately be conducted by the parties themselves, as they need to learn how to migrate the relationship from spouses to co-parents – the key is to learn how to communicate with each other in a proper manner.

5 Failing to make full and frank disclosure of assets

Hong Kong Family Court relies heavily on the Form E, which is a sort of financial statement of the parties, exchanged in the divorce proceedings, to resolve financial issues. The parties also need to disclose supporting documents such as bank statements with their Form Es. The parties would have opportunities to administer a questionnaire on each other’s Form Es.

As the world is becoming more cashless these days, assets can be traced by close examination of bank statements, which we often do in divorce proceedings. Failing to provide full and frank disclosure would give a very bad impression to the Judge, and would most likely backfire.

6 Hiding assets before divorce proceedings

Another mistake that many spouses make is to transfer their assets to third parties, often other family members or trusted friends, before starting divorce proceedings. We absolutely do not encourage this since it would drag those third parties into longer divorce proceedings, significantly increasing the legal costs.

It is also very common for the parents of the parties to come forward and assert that some of the assets in the name of the spouses actually belong to them, such as the matrimonial home. It is particularly common for parents to financially help their children acquiring their matrimonial home, especially in Hong Kong due to high property prices. In order to protect their savings, parents often come forward and claim that assets of their divorcing children belong to them beneficially. Such alleged argument may not be effective in shielding their divorcing children against spousal claim, of course depending on the real circumstances of the divorce.

7 Getting the children in the middle of it

Children are the core of every family, therefore it is inevitable for them to be involved in the process. How to minimize the impact of divorce to the children is the prime consideration of the Court in dealing with any children issues. As we always say, children’s best interest comes first.

The only way to minimize the effect of divorce towards the children is to put in place a process for parents and children, so that all parties can gradually adapt to the expected change of lifestyle after divorce: they have to accept that they may not be seeing both parents as frequently as before, and they may have to share their time between two households instead of one. Failing to agree on children issues, such as custody, care and control, access, nesting arrangements and long holidays arrangements, adds an extra layer of aggravation to the parents, as well as to the children.

8 Having unrealistic expectations towards the outcome

Divorcing spouses may wish to seek “justice” or use legal process to “penalize” the other party by instructing their lawyers to make the process unnecessary difficult, without understanding that it would not only be causing extra harm to themselves, but also wasting court’s time and resources. This will not be viewed favourably by the Court and will likely end up hurting their interests in the process.

There is no true winner in divorce, because the matrimonial pot will not expand with a longer divorce proceedings. It will only get smaller, especially when both parties need to bear legal costs.

Another unrealistic expectation is that spouses will be able to maintain the same standard of living as pre-divorce when there are not enough financial resources, especially in a place like Hong Kong when living standards are high or when neither party has a wealthy family background. When there are two households instead of one, the family expenses inevitably increase, and spouses’ income and assets may not be sufficient to sustain the same living standard as before divorce. Therefore, spouses should factor in such constraints before setting their claim.

9 Failing to take control of the process

Hopefully most people will only face divorce once in their lives, and therefore it is natural for them to resort to friends and professionals for assistance. However, they should not follow such advice blindly, because, in most circumstances, nobody else knows your spouse and your own circumstances better than you. Always think whether the advice would yield the intended effect, factoring in the other spouse’s potential reaction before acting on it. This is especially the case when you are advised to take drastic actions, such as evicting your spouse from the matrimonial home or surprising your spouse with an empty closet when he/she comes home from work: does it really help in the long run?

10 Not telling your lawyer the whole truth

Lawyers give legal advice based on the instructions given to them. Their advice will not be accurate and beneficial to you if you cannot have a frank, open-hearted and constructive discussion with your lawyer.

Sometimes lawyers may give advice that you do not want to hear, but this is part of their job. They assess the situation and give you opinion that they consider realistic, based on the knowledge and experience that they have.  Sometimes it is to set expectations, sometimes it is a reality check. Your lawyer will not be judgmental, and will always be there for your benefit.

Therefore, finding the right lawyer for you is essential since the beginning of the process. Do not shy from making thorough enquiries and seek valid references!

 

This video is for informational purposes only. Its contents do not constitute legal or professional advice.