You would have heard the radio ads, television ads or simply noticed on Facebook or the internet that law firms often entice you to contact them by saying “Get what you are entitled to.” Well that’s not all you should be concerned about. It’s more about how you get from where you are now to a point of being able to say “It’s over and I got what I consider a good outcome.”
Of course legal firms are suggesting they can tell you what you are entitled to because as lawyers that’s what they are trained to do. Most will do that very well but before you find out what you are entitled to ask your lawyer “How do I reach an agreement?”, whether it be about your children, property matters, child support or whatever, it’s not “entitlement” you are really seeking an answer to but how to resolve the issues you are facing.
So if you asked your lawyer how to go about reaching an agreement they will hopefully mention mediation and/or collaborative processes before they start talking about commencing legal proceedings to “get what you are entitled to”. With less than 5% of court actions ending in settlement before a trial stage it is often unnecessary to start court proceedings in the first place. Of course sometimes it is necessary to protect your immediate interests or the dissipation of assets or for the protection of children.
Just how do we know what we are entitled to under the Family Law Act?
- The paramount consideration in children’s matters is, and always has been (since the Family Law Act commenced in 1975) the best interests of the children. Interestingly it is not the best interests of parents. So entitlement in parenting matters comes down to both parents having a meaningful relationship with their children and the children being entitled to know and spend time with both their parents. At the end of the day a Judge is the only person who will tellyou what they believe is what you are entitled to but that is only after a final hearing. Oh, don’t forget the Judge’s decision is his/her opinion. If a litigant doesn’t like the outcome an appeal may be available and that judge or those judges may very well have a differnt opinion, but yes you will then find out what you are entitled to.
- In property settlement your entitlements depend upon an assessment of contributions and future needs of the parties having regard to a significant number of factors a Judge has to take into account. Any good family lawyer can give you advice and their opinion about what you might be “entitled” to, but that opinion will be based only on what you have told your lawyer and his/her opinion will no doubt be given to you within a range of outcomes because it just isn’t possible to predict what a court might do with any degree of certainty. The range may be between 5% and 30% depending upon your particular circumstances and the factors involved.
So the answer is that the only way you will ever find out what you are “entitled” to is to have a judge decide the matter. So unless you are willing to spend anywhere from $50,000 to or $100,000 each or more then its unlikely you will ever find out what you are “entitled” to.
Mediation either with or without the presence of lawyers within the mediation session/s or a collaborative process where the lawyers are always present in 4 way meetings will help you get to what you are really seeking – RESOLUTION in the most cost effective way. By the way either of these processes will help you maintain a respectful working relationship with other party that will allow you to parent your children apart into the future. The real winners are the children.
As we mediators say, it’s a win/win process. You have nothing to lose but much to gain TRY MEDIATION FIRST!
