Pets and family law

Not to make light of the situation but I guess this post could be subtitled: “When your marriage goes to the dogs, and pets are involved, what is the solution?”

Couples, especially those who do not have children, adore their pets and often treat them like kids. It's no surprise then that the question of who gets the pets after separation is a growing issue for family lawyers.

In some parts of the USA – and elsewhere around the world – pets are looked upon as property and the Courts can set out who is going to get the pets. Some Courts even settle pet disputes by making arrangements that are similar to those used in parenting cases – the Judgment will set out what days of the week pets will spend with each party, as well as issues concerning medical care and stipulations for pet day care if both parties work.

In Australia, however, such options are not available. I have had numerous cases where pets were an issue and I have had to tell my clients that they have to work it out themselves. If you can’t reach agreement it usually means one person walks away from their beloved pet. Even if an agreement can be reached between the parties it is not possible to have that agreement formalised as the Courts will not make Orders for pets.

While some may think that Orders for pets would be a good idea there are a few reasons why the law doesn’t consider pets as property. Most of these reasons relate to the question: what is their value? Unlike a child that cannot be bought and sold, it is possible to purchase a pet – but overtime the value of that animal will become vastly different to its “replacement” cost – perhaps even bear no resemblance to it at all in the case of a mixed breed dog who has become a vital member of the family, for example.  Or when an animal becomes a show animal or a champion - they will then have a much higher value that does not necessarily bear any resemblance to their replacement value. If the Courts allowed litigation in relation to pets people could spend thousands of dollars fighting over the value of the pet – and the reason they want the animal in the first place is not actually a monetary one, but an emotional one.

Nonetheless, it will be interesting to see if the law develops to reflect the growing importance of pets in our lives.

Celebrity role model?

You may have seen over the last couple of days a snippet about Reese Witherspoon and the law: her husband was allegedly driving while intoxicated and Reese apparently pulled a little celebrity hissy fit.

While that is not the celebrity role model I'm referring to in the heading of this post it did remind me of a moment that did capture Reese setting a fine example.

A little while ago a photo popped up in the celebrity gossip columns of Reese Witherspoon, her new husband, and her ex-husband Ryan Phillippe standing together watching their son Deacon’s soccer game.

It takes pretty special parents to be able to do this – what many therapists call ‘Child-Focused Separation’.

These are parents who are consciously aware of the emotional and psychological needs of their children following separation and who are willing to transcend the personal drama of the breakdown of their own relationship to help ease the way for their kids after separation.

In the case of Reese and Ryan, apparently they have a shared parental responsibility arrangement (they both continue to jointly make decisions about the kids) with the kids living primarily with Reese but spending significant time with Ryan.

What the soccer photo showed though was Ryan and Reese choosing to take one of the many extra opportunities – such as sporting events, school programs, recitals, parties, Open School Nights etc – to come together as a family unit. And this soccer game isn’t the only time Reece and Ryan have done this – three months after their split there were seen together attending a school function with their young children.

This is exactly what parents in a child-focused separation do – they put their differences behind them when it comes to “family” time. They’re civil, respectful and totally focused on giving their children the best possible experience when the family spends time together. These caring parents do not confide their frustrations to their children and, most important of all, they limit venting their anger and distain about the former spouse to conversations with other adults.

The significance of spending time together with both Mum and Dad when kids are experiencing the drama of their parent’s separation can’t be overstated. It provides support, security and stability at a time when the children’s world may be falling apart.

By being together at their son’s soccer match Ryan and Reece (and Jim) are rising above any resentment and vindictiveness for the sake of their children – and in the process they’re setting an example that’s worth public mention.

Dividing digital assets

Technology and the internet permeate nearly every aspect of life today – not only are mobile phones, iPods, iPads, e-readers, digital cameras and computers vital to our everyday lives but so is the technology and data that are crucial to our use and enjoyment of these items. And while some of these items only take up a small amount of space – or even only virtual space – they can take 100s or 1000s of dollars to accumulate.

So, in the case of divorce or relationship breakdown, what happens to these assets and data?

Splitting up today means couples need to consider what to do with items beyond the house and the car or even the pots and pans. It extends to technology devices like phones, tablets, laptops, e-readers, Xbox, and gets even more complicated with intangible items like cloud data, iTunes and Flickr accounts.

The process is simpler if things have been kept separate – you each keep your physical assets such as your own phone, e-reader, camera and computer – as well as your iTunes account and file sharing system (photos, e-books, downloaded movies etc) – and then you can reset privacy settings, un-friend or de-follow the in-laws etc, and start to move on.

But, for couples who have merged all their technology, share social media accounts and maybe even store it all conveniently in one giant, familial cloud, then the situation is murkier. If you can’t agree on how these assets are to be divided between you (by allocating items in the account to another account, for example) then in a contentious separation, details on how to divide digital goods like a shared photo site or an extensive movie streaming library will increasingly be addressed in negotiated Financial Agreements and Consent Orders or will even have to be determined by a Judge.

Perhaps less common – although certainly an emerging issue – is how to settle virtual assets (non-physical objects purchased online for use in online communities and games) purchased during a marriage or relationship. In ‘Second Life’ and other online games, people spend real-world currency to buy goods and features like pets, coins, avatar clothing and weapons, and even virtual real estate for these and other online activities. In some games, players trade and sell these goods and can convert them back to real-world currency, often for a profit. As an extreme example, in the multiplayer Entropia Universe a player sold a virtual nightclub for over US$600,000 – prior to sale that player was making around US$200,000 annually from other players purchasing virtual goods and services.

As the prevalence of digital technology and virtual assets is only likely to continue the division of these items following the breakdown in a marriage or relationship is growing issue.

The role of a family law solicitor

One of the hardest things to do when splitting up is to think rationally. Separation can be the most difficult of times, when often all that appeared to be certain and safe suddenly becomes uncertain and potentially unsafe. Even the most sensible of people wonder whether they are making the right choices, in their financial life or about their kids.

A large part of a family lawyer's role is to help guide clients through this process, including assisting clients to make rational and smart decisions, for the benefit of themselves and their children. A good family lawyer does this by focussing on their duty to the client - but above all the duty to the proper administration of the law.

Some people want their family law solicitor to be aggressive, antagonistic, and forceful - to ‘fight’ for them, or as someone once said to me “be a bulldog”. But the family law system – the Family Law Act and the Family Law Courts – is not set up that way. Believe it or not the entire system is focussed on compromise, on reaching a resolution that reflects your financial reality or the circumstances of your family. And this means that both sides will compromise.

Other people treat their lawyer as a counsellor. Despite all my experience in family law I haven't been trained as a counsellor, the emotionally pressured nature of family law negotiations (especially at Court) is not a great environment for reflection or contemplation ... and we charge for our time.

And others want their family law solicitor to fix all of their financial problems. Family lawyers are not experts on all topics, for example, we are not financial planners - indeed, we are not allowed to give our clients financial advice – nor are we mortgage brokers or bankers.

But what a good family law solicitor will do is take an holistic approach to your matter:

• Listen to you
• Identify the problems that need a solution
• Provide advice about your legal options (including reaching amicable agreement and if necessary your Court options)
• Negotiate, and if necessary litigate, to reach a resolution of your parenting or property matters
• Refer you to an expert who can help with the non-legal issues and then work with that expert to reach an overall solution

The entire aim of this approach is to give you as much peace of mind as possible, which enables you to make informed choices, which in turn allows you to return your focus on your life, including being the best parent you can be for your children. This approach also means that my clients can save a lot of money, either in a better financial outcome in the property settlement and/or resolving the matter sooner, saving substantial legal costs. A good outcome for everyone.

Divorce: what are the kids thinking?

If you are contemplating separation – or if you are already in the middle of it – one of your concerns is probably about how the kids are going to cope and what their thoughts of it (and you) are.

Some kids will tell you – sometimes loud and clear (temper tantrums) while others become too quiet (withdrawn). But most kids find it quite difficult to actually say how they are really feeling.

This is because most kids don’t want to make the situation worse.

As “grown-ups” we have a funny way of assuming that we have to shield our kids from anything upsetting but the reality of it is that kids instinctively know that their little lives depend on us and they therefore decide to protect their parents by not saying anything that will upset you even more.

But in the safety of a chat to the school counsellor or a private therapist, children frequently reveal the same worries and for kids under 10 these are the top concerns:

·         “I just want the fighting to stop” – sometimes witnessing arguments helps kids to adjust to the necessity of separation (one of the circumstances of divorce which kids struggle with the most is where separation comes as a surprise) but constant fighting and bitterness is not something children can cope with – their essential sense of security is too challenged.

·         “I hate being in the middle” – we all know that putting our kids in the middle (“tell your mother/father to be on time cause we’re not waiting”) is a bad idea but sometimes it is more insidious. A disparaging remark about your ex – no matter how justified – is interpreted as a disparaging remark about the child ... after all half of them is that person.

·         “I feel like it’s all my fault” – little ears hear things they shouldn’t ... “everything was fine until we had kids”. But children do not understand that what is being said is a symptom of something much deeper – they take it to heart and interpret such a statement as being aimed at them or their behaviour and they believe they are to blame for the separation.

·         “Is Mum/Dad divorcing me too” – kids take everything personally – they are the centre of their own universe. Therefore something perfectly understandable to you such as “I can’t see you on Sunday because I have to work” will be interpreted by them as “Dad doesn’t want to see me on Sunday” – they don’t automatically understand that your reasoning.  

·         “I wish everything would go back to how it was before” – however difficult family life was before it is nonetheless what the kids knew – they knew how each parent operated and what to expect from each parent. And kids are creatures of habit – they don’t understand the need for the change.

Knowing the above can help parents to help their kids through divorce. You can chose where and when to have the inevitable disagreements with your ex. You can be mindful of not making negative remarks about their other parent. You can remember to explain your reasoning to your child – not assume that they understand why you can’t make it to their soccer game. You can remember to constantly reassure your child that there has been a change in living arrangements not in the family arrangement – that the two of you will always love them. Most of all you can provide ongoing reassurance, conversation, love and attention as they settle into a new normal – because kids are incredibly adaptive ... with help from the grown-ups.

Separation in the age of the internet

We undoubtedly live in a digital age. We bank on-line, we shop on-line and we gamble on-line. Email and text message are prominent forms of communication. We download music, movies and television. We read blogs and we write blogs. And we socialise on-line.

Around the world over 800,000,000 people actively use Facebook – over 55% of the Australian population has a Facebook profile. Twitter has over 500,000,000 registered users generating over 340 million tweets daily. We don’t just socialise on-line … we love to socialise on-line.

With so many people sharing so much on sites like Facebook and Twitter it can be easy to forget that these sites are not private – they are in the public domain. You may be able to control your privacy settings but by their very nature you are sharing information with many other people and that information can passed on and shared beyond your control.

In increasing number the internet, and in particular social networking sites like Facebook and Twitter, are implicated in the breakdown of marriages and relationships.

A UK study indicated that one-third of divorce cases in England implicated Facebook – the 5,000 people polled cited three grounds: inappropriate messages sent to the opposite sex prior to separation, friends disclosing a spouse’s behavior (either prior to or after separation), and negative comments about each other posted after separation. And once litigation starts social media continues to play a paramount role to bolster claims of financial irresponsibility and parental deficits. A study by the American Academy of Matrimonial Lawyers found that in the past 5 years 80% of divorce matters included social media posts, mostly from Facebook.

So is there a way to combine family law and social networking?

Before you post anything ask yourself “How would I feel receiving this message?”

Avoid negative comments. Avoid sarcasm. Avoid personal remarks. Avoid threats.

And while we are on things to avoid ... family law is an intensely private and personal matter so maybe ask yourself if your comments should be put on social media at all – instead would it be better, if it really needs to be said, to instead email or text? If the other party has said something on social media, think carefully about whether you need to respond and whether that response would be better sent to them privately (text or email) and if you feel you need to defend your character to others – not everyone in their contacts list, just the people who matter to you - whether you could do that in private messages to them.

Do you mean 'I do' or 'I sue'

In the world of pop culture ‘pre-nups’ are common – George Clooney was in a movie about one, Charlotte negotiated one in Sex and the City, and everyone from royalty to Kim Kardashian apparently has one.  Kayne West even wrote a song about them with the catchy shout out “holla, we want pre-nup: ‘We want pre-nup.’” But in Australia pre-nuptial agreements (known as Pre Binding Financial Agreements) are far less common and, increasingly, their continued use is far from certain.

The Family Law Act 1975 allows parties to enter into an Agreement before they get married, or commence a de facto relationship, which addresses how, in the event of the breakdown of the marriage or relationship, all or any of the property or resources of the parties is to be dealt with.  It sounds relatively simple but the problem lies in the requirements set out in the Family Law Act for the Agreements to be executed. Essentially, the Act requires each party to have received ‘independent legal advice’ prior to entering into the Agreement on the effect of the Agreement on their rights and entitlements and the advantages and disadvantages at the time that the advice was provided to that party of making the Agreement.

In a 2008 case the Family Court set aside an Agreement – which the husband did not want to comply with following separation – on the basis that the Family Law Act requirements (slightly different to the current legislation) had not been strictly complied with. This decision gave way to a rash of litigation with many other people wishing to avoid their obligations on the basis that their lawyers had not complied with the requirements meticulously. The Federal government responded by relaxing the requirements in the Family Law Act slightly in an apparent attempt to ensure that people could still enter into such Agreements even if there were inadvertent or minor technical errors. However, varying the requirements was something of a high-wire act for the government and many believe that they still have not got it right. Indeed there are currently two cases making headlines on this issue.

The first has been dubbed, in the media, “the pole dancer case”. In this case the husband met the wife at a Sydney club around the time he separated from his first wife in the late 90s and they married some time later in 2005. They entered into an Agreement before marrying which provided for the wife to receive $3.25 million if their marriage broke down in four years. It ended within two. The husband, who apparently has a net worth of around $16 million, claims that the wife acted fraudulently when she said she wanted to spend the rest of her life with him and have children with him. However, he’s also relying on an allegation that his solicitor did not give him the necessary independent legal advice. In 2011 the Family Court determined that the Agreement stood. The husband is currently appealing that decision.

The second case involves Olympian Grant Hackett. While his apparent outburst was splashed across front pages everywhere increasingly it is litigation against his former solicitor that is making the news. It’s been reported that the swimmer is suing the solicitor who drafted the Agreement he and his former wife signed less than a month before they married in 2007 alleging that the Agreement did not comply with the requirements when signed and that the lawyer did not rectify the situation when the Agreement was varied some two years later.

As a result of cases just like these two headline grabbing examples there is a considerable amount of legal uncertainty surrounding Pre Binding Financial Agreements. The Family Law Council of Australia has written to the Federal government on a number of occasions urging it to amend the Family Law Act to clarify the requirements for independent legal advice – especially how to show that the solicitor provided the advice, that it was received by the client, and that the client understood it. The Family Law Council notes that lawyers are increasingly reluctant to prepare these pre relationship or marriage Agreements due to the growing uncertainty regarding the requirements.

NB: Pre Binding Financial Agreement are distinct from Binding Financial Agreements entered into after separation has occurred.