Podcast: Undergoing a separation or divorce during COVID-19

Sally:

My name is Sally Nicholes, Managing Partner of Nicholes Family Lawyers.  I’m joined today by Jacqueline Wharton and Anna Vote of Separation and Divorce Advisers.  This firm provides a range of services, aimed to assist negotiation with a former partner.  These include negotiation strategy, family law support, parenting plans, effective communication training and practical planning. Furthermore, the firm provide separation collaboration for couples who are seeking to reach financial or parenting agreements, in the most transparent and amicable way possible. It is now more important than ever that those undergoing a separation or divorce have access to these services, in the hope that despite being in the process of a separation or divorce during an otherwise unprecedented time, their interests are considered in an expedient and thoughtful way.

I am so glad to be joined today by Jacqueline Wharton, founder of Separation and Divorce Advisers. Jacqueline has practised as a lawyer for many years and later as a negotiation trainer and conflict coach who is based in Sydney.  She then moved to planning this great organisation and continues to assist those undergoing the difficult experience which is separation or divorce. I’m also very pleased to announce that we are also joined by Anna Vote who works with individuals to navigate the process of separation and divorce by negotiation and dispute resolution.  Anna is also a Family Dispute resolution practitioner who is based in Melbourne.  I’m very interested to discuss the implications of COVID – 19 as it relates to separation and divorce today, particularly with such amazing experts who have such incredible values in this way. Jacqueline and Anna, welcome!

Anna:

Thank you Sally for inviting us to talk with you today; we have really been enjoying listening to your podcasts, specially during these times of COVID, they have been really informative.

Jacqueline:

We really admire and thank you for the inclusive sort of leadership role which you are taking in this space, working with families and understanding the different things they go through, when they go through a difficult time. Thank you Sally for the leadership role you are taking in this space.

Sally:

It’s an absolute pleasure and I must say, getting the right stakeholders who have similar values is really exciting, and having spoken with both of you and worked with you, Anna, it’s an incredible resource and I know that clients having a divorce coach with them, particularly one who has their therapeutic interests at heart is just fabulous.  So questions:  what kind of collaborative and individual work do you do to assist your clients who are undergoing separation or divorce?

Jacqueline:

That’s a very good question, so I might start, Anna.  The services that we offer are – I suppose when I looked around, when I was going through a divorce, they are the sort of services that I would have liked when I was going through a really difficult time.  I mean, I was a lawyer, but I still found the process incredibly stressful. I was looking for someone who would bridge the gap between my psych and my lawyer and my accountant, and someone really there to be in my corner and hold my hand and explain what was happening.  So from there I developed what is now known as Separation and Divorce Advisers and we really started focussing on the process of giving individual advice which was helping individuals navigate the financial and the parenting aspects of divorce as well as the emotional side and now we also help couples with separation  and that is really for couples who want to be amicable and want to work together.  We sort of see them as being on the same side of the table, working with us on the other side.  We offer them guidance and options and explaining the practical side of divorce: who should take the car, who should have the computer, where is the best place to pick up the kids, how to talk to the kids about your separation.  What we do spans across a whole range of fields.

Anna:

I might just add to that.  So Jacq and I are both registered family dispute resolution practitioners and Jacq has done the course and is an accredited mediator as well.  But what we do is different to standard or traditional family dispute resolution in that that is the facilitative model and for that to be successful, it requires the two parties to come to the table and be able to know already what is reasonable and how they are going to present it, how they will ask questions, how they are going to overcome objections from the other side; they really need to go into that prepared and there is really not a lot of preparation in the standard model.  We are really doing a more inclusive, broader practice.  It is mediation to a degree, but it is very hands – on and it is active and it is advice-giving and coaching to both parties and often and usually over an extended period of time. So it may be weeks or months as opposed to a five-hour session, once or twice.

Jacqueline:

You’ve raised some good points, Anna.  I should have added in that the separation collaboration will often involve us working with a couple’s financial planner, we talk to both their lawyers, we can get their accountants involved, we sometimes talk to a family therapist so we really are getting in to the middle of it all.  We try to keep things calm so that people can have that conscious uncoupling experience and do things as best they can.

We sort of see that the children are our clients, we see that when we are providing individual advice and I’m certainly upfront with my clients that my real client is not in the room, I always want to see a photograph of the kids because they are really important.

Sally:

Absolutely, I do too, because it is really lovely to see who we are talking about; it’s really a nice thing to do.  So you talked a little bit about how you provide options and supports and strategies but can you elaborate a little bit further? How is it different or how does it complement the traditional legal process?

Anna:

Maybe if we take a step back in terms of what we actually do – we’ve touched on  broadly what we do and when we are working with a couple who are separating, Jacq and I talk about how it is really keeping the couple together while they separate, and that might sound like an oxymoron, but it is, Sally, as you’d know, you can easily get off track if you go down the traditional legal path.  It can be naturally adversarial and there are lots of good practitioners who are collaborative and try to work in the interests of the family, but the process in itself and specially if the clients are going to their lawyers with high emotions and strong positions about what should happen or what someone has done wrong – it can easily go off track so we are trying to bring people back together or at least being on the same page as much as they can on the key issues.  In terms of what we do, it is really multi-faceted and depends on what are the needs of each client and whether or not we are working with individuals or couples.  Broadly we provide a client with a combination of what they ask us, what they want to know, but also what we know is important that they understand.  Jacq and I know what people need and Sally, you would know what people need to know, but for people going through this for the first time, they don’t know what to ask, they don’t know what is ahead.

Jacqueline:

Often they are apologising, saying I’m so sorry, I don’t understand this or I don’t know and we say, well you haven’t been through this before so how would you know.

Sally:

I think it is a great point in providing that support – we often say to people: do you have a therapist, for example, or do you have the resources to be supported through this process, because we are not social scientists, so we are limited by that, for example but more often than not, people say: I have a good friendship network, and in a very direct way we say well that’s wonderful but it is good to get that objectivity or the therapeutic skills that neither you nor your friends will have, because sometimes friends can become positional or make other people become positional, so that’s excellent

Anna:

We refer to friends as cheerleaders sometimes in that they want the very best for their family member or their friend and they are there to support, but as you say, Sally, it’s not objective, they might not understand both sides of the story, they may not understand  what objectively is going to happen in a  process, and what the implications are for their friend or family member.  It’s about horses for courses, using your lawyer for your legal work and your psychologist for emotional and problem-solving, and your friends and family just for love and support.  We are somewhere across that spectrum as well, providing those levels of support but definitely bringing an objective and experienced-based perspective to it.

Jacqueline:

I think that is so true. I was talking to a client yesterday, she separated towards the end of last year and she was saying to me that she was feeling really down because her friends were not really around as much as they were in the beginning, and she feels that she might have ostracised them by telling them too much about the divorce, which has placed them in a difficult position. I think that is really normal, it does happen, and it’s not that people don’t care, it’s just that they have given all the advice that they can give and people move on with their own world.  It is not that they don’t care, it’s just that at some point, they have given all the advice they can give and people move on with their own world, it is not that they don’t care, it’s just that they move on to the next thing.   So having someone around consistently like Anna and I around, I think it does actually help people because they can just call us and have a 15 minute rant or cry or whatever it is and get it out of their system and then move on with their day. At least that’s what we hope they are doing.

Anna:

Yes, and it is a combination of that sort of emotional support and someone to talk to, which is so important;  people need to be heard and they need to be understood and supported through this process, but it is also, how do I put it, ensuring that the emotional experience of the process does not railroad or de-rail the whole separation outcome, because it can.

Sally:

I think that is a great point and you have expressed it beautifully.  I think when I know that there is a therapist, for example, or if I knew that the two of you are working as a divorce coach, I will often have clients who will say: I don’t care, I hear what you are saying, but I’m going to spend $100,000 on legal fees where I might get an extra 200 or I might not, I’m going to do it. It’s got a punitive element to it, and even if I say: well, you are not going to forgive me in a year’s time …it’s almost taking advantage of your emotions…. to do so, but if I’ve really got my own little artillery of how I try to speak someone off a wall when they are doing something un-commercial, but if I can refer then to a therapist or a divorce coach it would be wonderful to say, if we have got that ability to be transparent and say: I’m really worried about that the outcome won’t even really address what is upsetting them, and I can’t really deal with, in that adversarial process if that is the process that we are in.

Anna:

That is so true, Sally.  I’ve had conversations with people who are walking away from a mediation or not taking an offer which is in their best interests to be taken, being in a room with them and mostly being able successfully to point out that not agreeing or pushing back or whatever it is, is not going to solve the problem for them, they are still going to have the feelings that they have, of resentment, or that money was wasted in the past, but it is only snowballing and making the problem bigger.  Separation and divorce are never easy but it is about making it less harmful and causing the least damage possible.

Sally:

I agree, it is actually heart-breaking when you are working with really good practitioners and Counsel in a commercial mediation, it is heart-breaking when we know that we have an offer which is well within the range, we can save future fees, we go through all of that, and we often find that there is a client who, even if it would work well with them…..by the next day they have remorse, but we know that it is so much better for them and we will say to them: if we were just driven by fees, we would not be encouraging you to do this, this is so good for you.  But I find myself saying: I hear that you feel that it is not a morally fair framework and I really feel for people who say that, and I hear them, and again, it would be wonderful to have a team member like yourselves to ring up and say: Could you please unpack this because I have tried my best, but I’m really worried that they are going to make a decision that is based on those emotions that we have been talking about.  Or that they will be unhappy, they should be thrilled that they are out of the system which is unfair at times.

Jacqueline:

Using the family law system as a boxing-ring really does not help anyone and we are always trying to get clients out of that ring and understand that they are going to get hurt too, and most importantly, the kids are going to get hurt if people just keep pounding each other.

Sally:

I represent children in proceedings as an Independent Children’s Lawyer and having to explain that mum and dad can’t agree, and that’s why we are here, and you just see – the shoulders go up and it’s just really sad.  Judges know this too, and know that it is an imperfect system but they do their best but they have to operate within a framework which is imperfect, and if people cannot resolve their disputes, then they will need a judge-ordered decision and there will unfortunately always be that high conflict degree of cases where people have got mental health issues, where someone needs to have a court-ordered decision which is quite tragic but if it can be avoided then it’s just fabulous. So in doing that your work obviously complements what we are taught working within a traditional legal process; would either of you want to elaborate on that?

Jacqueline:

I think it is important to highlight that we don’t provide legal advice, there are obviously many fantastic family lawyers out there, so I was a lawyer but I don’t practise any more. I did dabble in family law for a while but after a while I came to the view that, yes, there are lots of family lawyers out there, like you, Sally, and what people are missing is really assistance to help them communicate with their former partner or to negotiate, so I hung my legal hat up.  We are really clear with our clients that getting legal advice is really important.  We see ourselves, don’t we Anna, as a soft launch into the legal system. In my own experience, I was a lawyer for many years at Mallesons and a litigator and I remember the day when I had to get family law advice and I was absolutely petrified, I was totally intimidated in walking into that family law firm. I mean, my lawyer was lovely, he was really a generous and kind lawyer, but I just found it so discombobulating being there, so that is an important part of what we do: to assist clients to get good legal advice, and also teach them how to be confident with their family lawyers and what questions to ask.

Sally:

And having that communication and so many family lawyers are just so dedicated towards trying to settle matters and to do the best thing by the family.  We actually have obligations to do the best for children as well. There are all these ethical obligations – with most of my colleagues I think you can pick up the phone and chat to them, but sometimes people say that the problem is the client and I think that is a missing bit of the jigsaw that you’re coping with.

Jacqueline:

We try to teach people how the legal system works so how child support fits in with the divorce, which fits in with spousal maintenance or splitting of assets, so we try and teach people: this is how divorce works, this is how child support works, this is also how your parenting may work, so that when they go to see their lawyer, and often we can accompany them, they are asking the right questions and they are really understanding what their lawyer is telling them, and sometimes they are really freezing in those meetings, too, so we are there to remind them what their lawyer has told them.  And generally then they feel more confident in dealing with their lawyer because – I don’t know about you Anna, but I get a lot of clients coming to me and saying: I don’t think my lawyer is any good, can you look at what they have told me and at the end of the day, I think the lawyer is giving really good advice and good strategic advice, but it just hasn’t landed with the client, the client doesn’t really understand what is going on.  Bit of a strange story, but I remember one of my first clients, and I went with her to see the lawyer, and the lawyer said: I keep saying to her: we need to file, we need to file, and no word of a lie, I went back to her office and she said to me: I have filed it, look, it is in my filing cabinet.  It struck home with me, that we are so used to the language that we use as lawyers, we don’t understand that this is not everyday dialogue for people!

Sally:

The outcome of the story? I think what you are actually saying is that there are some clients for whom you do actually need to file an application to actually get the ball rolling and that can sometimes be a good boundary-starter, because some people need boundaries, from a psychological point of view, and be empowered and sometimes it will lead to a resolution, so there can be a good strategic reason for it, but I didn’t realise about this language issue, that is hysterical!

Jacqueline:

Well it was a shock to me too. I couldn’t really understand what was happening,  because I am so used to filing as a litigation lawyer in my previous life.  She was a smart lady, she has just never heard that terminology, and there was a miscommunication between her and her lawyer, and I was able to help her to explain what was going on, and then they went on their merry way, having confidence.

Sally:

It’s good listening to you, I just made a mental note to tell that story to my lawyers, we often when I am settling letters and attempting to put them into plain English but I think even judges appreciate that too, keep the issues simple and try to keep that open communication and I like the fact that you are trying to bring together parties and try to make them realise that if they are parents, they will still be co-parenting for a long time, navigating that with some of the challenges because the relationship has broken down so how can you be on the same page. Saving costs, that should be a big agenda item for both parties if it is a financial matter.   So that sounds great.  What about with COVID?  How have you found – have there been any notable differences in your clients’ experiences, separation and divorce during COVID?

Anna:

Yes, there has, Sally, absolutely, and in different ways; and I think if we could put all the issues we have been presented with in two different buckets, there would be parenting issues and financial issues and when it comes to parenting, depending on where a family is at in their separation even if they have got orders in place and they have got an established parenting plan, it might be that those care arrangements are no longer appropriate, you are in lockdown, then you have the added complication of: OK so my ex has re-partnered, or the father of my child has re-partnered and that woman has children so how do they all socially isolate together or should they be in contact, you know, how does that work, or does that introduce risk and there have been issues about home-schooling, it’s been a big one that my clients have come to me to help resolve – home-schooling is both an opportunity to get closer to your child and understand what is going on with them in their school life and the work that they are doing, but it is also a massive burden in terms of your time and resources as a parent, and particularly if you are working as well. There have been a few issues, such as whose obligation is it to do the home schooling

I’ve also unfortunately had both kids and parents who have had to be tested for COVID and that may have meant then that the handover could not happen when it was meant to because they have to wait until they get the results back.   I have also had some positive cases of COVID which meant that the parenting arrangements had to be put on hold for two or three weeks while that person got well again and was cleared to go back to having contact with their kids. So all sorts of issues, when it comes down to it, COVID was a curve-ball that none of us saw coming and it introduces ambiguity.  Wherever there is ambiguity and change, there is room for confusion and dispute. If you had a good parenting relationship already then you were probably able to navigate that well but if there was poor communication or a bad parenting relationship then those cracks were going to open up under the pressure of COVID.

Jacq, do you want to talk about some of the financial impacts that we have seen?

Jacqueline:

Mainly in terms of the unemployment, and peoples’ redundancies and bonuses not coming through which has led to huge amounts of day-to-day financial hardship. In fact we are probably getting more clients coming to see us than otherwise because they are looking to save costs and trying to resolve things with their partner, one on one rather than going through the legal system.  But yes, the value of peoples’ superannuation, value of the family home, how do you value businesses, all the investments going up and down, and superannuation, I think it has just been really difficult and scary for people who are otherwise in a difficult situation, in a really scary place to navigate.

So decisions needing to be made about what assets to hold on to, or even – it’s funny, I was talking to a psychologist the other day and she was talking about what psychologists are seeing in terms of how people are reacting and it really reflected how Anna and you and I are seeing how our clients are behaving.  She was saying that in the first two weeks, everyone was sort of frozen, no one knew what was happening and we certainly saw that with our client base. It was really quiet for a couple of weeks, while everyone was readjusting to what this all meant.  Then there was a flurry of activity. Three or four of my clients settled major disputes which had been going on for many years, because they were looking for certainty. And evidently there was a flurry of activity within the home, with all the baking and everything else that was going on.

And then, just in the last couple of weeks, with everyone coming out, everyone creeping more slowly out, and we see that play out in the work-place, too.   I’m noticing that people who weren’t wanting to leave or couldn’t leave before, are now beginning to take those actions to either say that they are going to separate, or actually leaving the family home so it is quite interesting how the psychology of all of this has worked.

Anna:

I might add in there, Sally, I heard you on ABC radio Melbourne a few weeks ago, talking about the escalations in family violence as a result of people being isolated in their homes, not able to get help, and obviously more vulnerable because of that.  If there is a silver lining to COVID for my recently-separated clients, they really reflected on how relieved they were that they had actually separated already and they were not in lockdown with their ex in a toxic relationship and they had peace at home.

Sally:

Yes, a positive story. Have you noticed that there has been a surge in domestic violence in the clients that you have spoken to? Or do you think the recent restrictions have really tested relationships in different ways, because we have had some bizarre uses of COVID to be violent to people.

Anna:

From my perspective, it was more around positive tests and the kids not being allowed to visit the parent until the parent was better, and all the complications that came with that, and having to work our way through that.  Absolutely, COVID put pressure on vulnerable families. One of the saddest situations was a client that I had been working with quietly preparing for separation – which is something we do, Sally  – a lot of our clients come to us before they have actually separated, to try to understand what is going to happen, and plan and prepare for it so they know they will have some control once they make the decision, and as you know, if you are in an abusive relationship you have to plan for it to get out.  What are your options, a and b and if that doesn’t work, who do you go to. I had been working with a client around that for some time and then I got a text, early days when everything fell apart with COVID and we went into lockdown and she just said: Look I have lost my job and I can’t leave and also I can’t talk to you because I can’t get out of the house. It was just devastating because I knew how much on the edge she was and how at risk she was.  I still today do not know because she has not been able to get to the point where she can start again on moving out. Very scary.

Sally:

The whispered instructions given in locked rooms by people separated under the same roof and looking over their shoulder and feeling concerned even about access to the cloud and computers and all those sort of things.  One of the saddest interviews I did was with the CEO of PANDA, which looks after parents when they are expecting babies and just after they have had babies, and they noticed a decrease in reports of family violence, but they were so concerned about that because they felt that was because there was no access to maternal health nurses, which I think thankfully has now changed,  no access to mothers’ groups and also being stuck in the house with a perpetrator, so that was one of the reasons why we were very determined to do a webinar for law week in particular with the Chief Justice to let everyone know that in those cases where you do need urgent assistance, whether you need the police or need to issue urgently- file, actually file in Court; the courts were so committed to ensuring that anyone who used COVID to try to commit a form of family violence would have a special listing within the family court within 72 hours, which I think was amazing if you needed something dealt with, and it also was a message to perpetrators that it was not going to be tolerated, which I thought was really important.

Jacqueline:

It has been amazing listening to your podcasts; I know that you have done a lot of media on domestic violence and COVID, Sally, and there have been many others. It is heartening to see that there are other professionals and the media also taking this really seriously and understanding what coercive control is, and understanding the impacts of the isolation and really making it clear what courses of action people can take if they need help, letting it be known that help is available, that  people are waiting and willing to help. It is distressing when you know you have clients in really vulnerable positions, and you can’t hear from them and you can’t ring them either.

Anna:

No or even text in case their phone is picked up. It is truly isolated like being isolated on an island where you are at risk, it is as tough as it gets.

Sally:

And that is why we were committed, particularly with the Women’s  Information Referral Exchange (WIRE), to partner – they were our first partner in the podcasts to make sure that we could actually let people who were at risk know that there were things that they could do and there were people out there who cared.  Looking at the considerations which would need to be taken into account by a couple who were undergoing a divorce during the pandemic, do you have a checklist, do you find a way of approaching, has it changed the way you approach a couple?

Anna:

In my experience often in suppression and collaboration we actually meet people who are in the family home, we like doing that because we want to recognise that this is really what is happening here, we are talking about a family who is separating, we want the couple to remember that even though they won’t be that family any more, they will be a different family.  COVID meant that we were not able to do that in the same way so that like most professional services we have had to move to Zoom or Google Meet or whatever, which has been useful and has worked in some ways and not so well in others.  Obviously you cannot pick up all the nuances if you are not in a room with a couple particularly if they are in the room and you are talking to them. But in other ways, it takes a little bit of the emotions out of it as well. So there are pros and cons.

The courts have had to deal with this too, to find time to be away from the kids or the dog in order to have those meetings, but for the most part, I think people are wanting it to stay amicable because they are understanding that there just isn’t money to throw around. Previously we had houses going up in value and super and everything else, but now things are tighter so people are trying to come out of this as best they can and working out that this means not throwing grenades at each other but trying to be constructive and productive in the way that they are approaching their separation.

Sally:

And do you feel as though divorce and separation services are still generally available to those who require them? I’ve obviously made my comment about the Family Court and the COVID list,  but what about the services that you would normally refer people to, has there been any change?

Anna:

From our perspective, nothing has changed, everyone is busy in the family law space that we talk to and even if contact is made over the phone or zoom more than face-to-face meetings and even in the last two weeks, face-to-face is starting to make a slow comeback. From my perspective, and Jacq, maybe your experience in Sydney has been different but everyone is still available to get the support that they need if they are able to reach out and are not trapped at home in an abusive relationship. We have not noticed a downturn in the availability of services, everyone is just really busy in this space which is an indicator that there is a lot of stress in society but hopefully we can help people work through it in a supported and pragmatic way so that it doesn’t do more damage.  People are already feeling more fragile, it is about making the separation process less traumatic and better for the family as a whole.

Jacqueline:

Looking at the impact of COVID on relationships, in Wuhan there was a big spike in divorce rates, I think, when everything was opened up. I haven’t seen any statistics, I don’t know if you have, Sally, on whether there seems to be more people separating. There is also some evidence from the US that people’s relationships are actually improving because a lot of external pressures have been taken off people.

Sally:

It is nice to hear some positive news.  I think the Age newspaper reported that there was a 23% increase in activity and that correlates with our experience.  We were busy beforehand but then there was a 10 day paralysis, I don’t know why, it was interesting, and people just being in shock and then it has gone on being business as usual, but I agree with what Anna alluded to earlier that if there are cracks in the relationship, they will just widen because stress is heightened by the social isolation and I think that is consistent with what our clients are reporting.  Going forward, do you think that the way in which divorce and separation advice is given will be changed in the foreseeable future, will there be a new normal?

Anna:

I think clients are looking for greater cut-through – there will always be a place and a need, as you spoke about earlier, Sally, for litigation when there is no other option, and for very complex matters and where there are children’s safety at risk,  and so forth, but I think the majority of people just want to get a fair settlement but to have the confidence to know what is fair and to be supported through that. It is about reducing fear, setting realistic expectations, re-framing what happened in the past, what’s important that needs to be considered now and going into the future and what you need to leave behind, and at the end of the day, most of the outcomes in family law are within a range that we can see going into it, and it is just where in that range you land.

Sally:

Often I find I say to clients that I think the person on the other side is reasonable and this is where you pitch it, and you don’t always get the response that you want and that is a frustration that we all should really know, particularly if it is property, where it should land and there should be no reason, unless someone is not disclosing or is hiding assets, or someone is really determined to punish or to try to wear someone down by attrition which is awful, but hopefully only a small amount of cases – I think it is only 8% of cases was the last stat that I looked at, that go to a final hearing – for a very good reason, which is that most family lawyers are extremely committed to resolving matters and also trying to redress that power imbalance which again, having your services will be and is, really fantastic for those who are feeling really vulnerable and not understanding the process, it will greatly assist.

Many thanks for your participation in the podcast.  Anyone who wants to use Anna or Jacqueline’s services, we will have all the relevant information on our website to correlate with the podcast.  I really appreciate your time as I know you are both extremely busy and it was good to get your together at the same time. So thank you so much and thank you for looking after people so beautifully.

Anna and Jacqueline:

And thank you, Sally.

Disclaimer: Nicholes Family Lawyers intends the information provided in this podcast as general information only, please contact Nicholes Family lawyers if you require specific information and advise in relation to any family law matter.