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How to Manage Conflicting Needs When Negotiating A Separation Agreement?

9th Jul 2020 Legal Advice
Separation can be a confusing and frustrating time, especially when agreeing on arrangements isn’t a simple matter. It can be an adjustment to go from making joint agreements to pursuing your individual needs, and naturally conflicts and disagreements can occur. The best way to formalise your arrangements is through a marriage separation agreement - and there are multiple things to consider when drafting this document. When it comes to conflicts, family dispute resolution is often the best way to resolve these.

What arrangements need to be made?

A marriage separation agreement can cover many arrangements relating to the breakdown of a relationship, which will often require a significant amount of negotiation. Primary considerations are:
  • Formalisation of separation (while this may seem obvious, in many cases it’s important to have a legal record of the intent and date of separation)
  • Arrangements for living apart (it’s possible to separate while still living together, but if you and your partner wish to live separately you can formalise this agreement in the document)
  • Financial agreements including bank accounts and spousal maintenance
  • Handling of assets
  • Parenting and child support arrangements
The most common areas of disagreement tend to be childcare and property sharing, so it’s important to have clear formalised arrangements regarding these. 

Should I seek legal advice?

If there are disagreements about post-separation arrangements (and even if there aren’t), it’s a good idea to seek out legal advice for multiple reasons. A lawyer can act as a neutral mediator when drafting a marriage separation agreement, and by going through this channel you can also (if necessary) avoid negotiating directly with your partner if there is conflict or family violence. A lawyer knows each individual’s legal entitlements and requirements, and can formalise any agreements made. 

Why negotiate?

Often, family dispute resolution is a necessary step in the legal process so it’s a good idea to go to a lawyer first before going through a potentially lengthy, stressful, and expensive court battle. If negotiation does fail you can apply for orders relating to financial and childcare matters. A failure in negotiations may cause you to end up with arrangements you don’t work for you, or that don’t accurately reflect all the circumstances of your situation. Keep in mind also that most family law applications end up being resolved without reaching the final court hearing. Generally it is in your interest to resolve disagreements outside of court.

What will negotiation involve?

When approaching marriage separation agreement negotiation, there are often conflicting needs which can be difficult to resolve. In Family Dispute Resolution, a mediator can help to guide the negotiations in the following ways:
  • Identifying each individual matter to negotiate
  • Keeping clear goals
  • Staying focussed in discussions
  • Encouraging participants to listen to each others’ points of view
  • Negotiating acceptable compromises
  • If there are children involved, keeping focussed on their needs and welfare
Dispute resolution and negotiation can take multiple forms, depending on your needs. If face-to-face negotiation is impossible or unproductive there are other means such as communicating via letters, or negotiating in separate rooms (shuttle mediation). Additionally, allowances can be made for involving children in the process if this is necessary.

Keep in mind

In this understandably busy and stressful time, there are several things to keep at the forefront of your mind. Firstly, in negotiating a marriage separation agreement, it’s very important that all disclosures, particularly in relation to finances, are done with complete honesty. A fair and accurate agreement can’t be made without all the facts, and if any party does not make a complete disclosure this can negatively impact them later.  It’s also important to keep in mind that the finished and signed separation agreement can be legally enforceable. Often a source of conflicts within separation negotiations is because one partner is coming to terms with the separation at a different pace, which can lead to differing expectations and needs. Another important factor in managing disputes can be reaching out for support from friends and family, and seeking professional counselling. This can assist in making negotiations smoother, and allowing ongoing communication. There can be many causes for conflicting needs when it comes to negotiating a separation agreement, but there are many options available for overcoming these such as seeking a neutral mediator, utilising alternative mediation options, and being informed of all your legal entitlements. With clear, calm negotiating, you can seek the best outcome for your separation agreement.

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