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Silver Linings in Divorce

It is a new year and we can never predict what lies ahead, but there are definitely many adventures to be had. If you are going through a divorce, there may be many challenges ahead, but regardless of the challenges, there is always a silver lining in every difficult circumstance.

With that being said, I have listed some of the common challenges you may face dealing with divorce this year, but alongside that I have also listed some of the wonderful accomplishments and adventures you may gain along the way:

1. Heartbreak Over A Failed Relationship. When divorce happens, there is heartbreak, especially if you are the spouse that wanted the relationship to work. Understandably, heartbreak is emotionally and physically taxing and can be magnified in divorce. You and your spouse have invested considerable time into each other and there are many dreams you both had for your family. While it is normal for individuals to go through a grieving process, this is also a wonderful time for you to focus on what is ahead. Set new personal and professional goals, think about some of the hobbies you have always wanted to master and the places you have always wanted to see, especially if Covid-19 restrictions are on its way to being eased in Hong Kong and around the world! For many of you, this could also mean a new start in building new relationships and getting back into the dating scene. Divorce is not the end and there are many wonderful experiences and memories you will encounter over your lifetime.

2. Finance Woes. Divorce can wreak havoc on your finances. For example, a court may order you to pay monthly maintenance for your spouse and for the children, which will cut into your monthly income. In a divorce settlement, you may be required to pay out a significant sum to your ex-spouse to equalize the division of assets and debts. The nest egg you saved in your retirement accounts may also be cut in half as part of a divorce settlement. While the financial pressures associated with divorce can cause great stress, this is also your chance to become empowered to take charge of your finances and create a roadmap for your future financial success. It is during this time that it would be beneficial for you to meet with a financial expert to plan a budget and manage finances following divorce. If you are the receiving party to maintenance, it is not wise to squander your monthly support cheques or your lump-sum divorce settlement with no thought to your financial future. This may also be a good time to think about entering back into the job market and should be discussed with your solicitor about how this will play into your divorce.

3. Co-parenting Rocky Road. In divorce, you and your ex-spouse will begin to co-parent. For some parents, co-parenting is easy with no issue. However, other parents find co-parenting a nightmare and have difficulty communicating with each other. Co-parenting may be difficult for parents, but this “new normal” is also very difficult for children and pets. Remember that this is difficult for everyone involved, especially when you and your ex-spouse are sparring over co-parenting issues. While co-parenting can be rocky, it is a great opportunity for you and your ex-spouse to work on communication skills with one another and with your children. Talk to your children about what the divorce means for them and how it will affect their relationship with you. Ask your children how they feel and what you can do to make the transition easier. Using this difficult situation as an opportunity to build communication bridges with your children will be rewarding in the long-run. Remember that it is important not to use your children as a weapon against your spouse during divorce proceedings. Avoid talking to your children about adult issues related to the divorce. Finally, now that a new family dynamic is being created, this is also a great opportunity to create new traditions and new routines for your family.

With the start of the new year, consult with your attorney about how you would like to proceed in your divorce and the goals you would like to see by the end of the year. Setting goals for your divorce will help you overcome every challenge you face during divorce. Once you get past the challenges, you can then look back and be proud of your accomplishments.

When Divorce Is A Bad Idea

Determining whether to move forward with a divorce is a decision that needs to be made wisely and should be made based on legitimate reasoning. Divorce is a long, emotional process and the decision to divorce should not be taken lightly or made impulsively. It is important to note that there is always time to change your mind, even if the divorce train is well on its way. Regardless of your situation, it is always a good option to work on the relationship before making a final decision to divorce, especially if the following applies:

1. You waiver about divorce: If you waiver over whether to divorce or not, it is better to err on the side of caution and try working on the relationship before opting for divorce. When you waiver, it perhaps it is a sign that there remains confusion over whether this is the best decision for you and your family and there is still an attachment to the idea of remaining in the relationship.

2. You have not yet thought through the entire process: If you have not thought through the entire process of divorce, you may not be ready for a divorce. It is important to do things such as: thinking through the entire process includes reading articles and books that outline what you can expect in a divorce and also talking to friends about their experiences in a divorce can also help you through the process. Making an appointment with experts like your financial planner may also be a good idea so you know what your financial picture will look like in a divorce. What about your children and how it will affect them? Would you move and if so, what schools would your children be enrolled in if you and your spouse divorce? Will your spouse agree with your decision to move because if he/she does not agree, it could turn into a very litigious and expensive divorce. And most importantly, do you still love your spouse? Imagine a life without this person and go from there.

3. You and your spouse are willing to try counseling: It is important that before you make a final decision to divorce, that you and your spouse have exhausted all avenues of repairing your relationship. One option to assist and heal your relationship is through counseling, whether it be individual therapy or couples therapy. It is important to remember though, that therapy is not a quick fix for your relationship, but it requires time, energy and financial investment. Thus, you and your spouse need to be willing to put in the time and effort in therapy to try and make the relationship work.

The decision to divorce should not be taken lightly since it will be a life-altering event. Consider some of the key points outlined above and make sure you make an informed, rational decision before taking this course of action.

Potential Risks When Litigating Relocation in Divorce

For our last installment in this three-part relocation series, we are going to explore the potential risks that you may face when you decide to litigate a relocation application in the Family Court in Hong Kong. Generally speaking, it is always a better option to come to agreements with your ex-spouse rather than litigate matters in the Family Court. However, it is sometimes an impossibility you’re your ex-spouse is not reasonable and/or not willing to resolve matters outside of Court, whether it be agreements made directly with one another or through mediation. Relocation is a heated discussion between divorcing couples if there is no agreement. Thus, let’s look at some of the potential risks you should consider before you proceed and make your case before a judge. Bear in mind that these are only “potential” risks and each outcome will depend on the circumstances of your case and the judge deciding the outcome.

1. Less Time With Your Children: In our previous article, we explained that if you file an application in bad faith (eg. To alienate the other parent from the children) and this is revealed to the judge, you may expose yourself to a change in your custody and visitation orders. Thus, it is extremely important that the focus of your relocation application is the welfare of your child. A relocation application should never be filed to cause a rift or disrupt the bond between your ex-spouse and your child.

2. Money and Time Spent: A relocation application is not a quick and easy process. You may find yourself waiting for months before you are heard before the Family Court and once the process begins to move through the Court process, it could take significant time before an order is made by the judge. Moreover, solicitor and barrister fees and costs will also pile up rather quickly and you should anticipate having to pay significant fees to litigate your matter.

3. Psychological Damage: There is no definitive evidence to suggest that a relocation will have any psychological impact on your children, but there is some research out there that suggests it could have a long-term impact on a child’s psychology. This is definitely something to consider and watch out for. Look for signs of stress and anxiety in your child. Think about what kind of effect this might have long-term knowing your child’s unique personality and bond with the other parent. If anything, a relocation could potentially cause more distress than the usual divorce due to your child being uprooted.

4. Hague Convention Risks: In the event that you make a unilateral decision and you move your child to another country without consent or a court order, you will be subject to The Hague Convention on the Civil Aspects of International Child Abduction. It is considered child abduction if you wrongfully remove a child from their home state. Fleeing Hong Kong without written consent by the other parent or court order is risky business and you should seriously reconsider your decision and you should consult with a solicitor who can inform you of all the risk.

Being prepared will help you overcome any obstacles you may face in a relocation application before the Hong Kong court and should be taken seriously to avoid any significant adverse repercussions upon yourself or the children.

Your Legal Rights To Relocate Your Child

In our previous post, we discussed the importance of a well-thought-out plan before you decide to move your child away to another country. Whilst it may be tempting to romanticize the idea of a fresh start, it is important to refrain from jumping the gun and instead reflect upon the effects of a relocation on your child and your ex-spouse.

Unless you and your ex-spouse agree to a relocation, the relocation process will be costly and time-consuming once the Family Court is involved in the decision-making process. Relocation applications are taken very seriously by the Family Court in Hong Kong. Thus, before you decide to relocate, it is prudent to become knowledgeable as to what the Family Court will consider in making its decision regarding your desire to relocate. Thus, it is especially important that you retain a solicitor to discuss a relocation.

1. Welfare of the Child: In Hong Kong, the welfare of the child is the paramount consideration and in Hong Kong, the Family Court will ask important questions before making a decision: First, is the removing parent’s application genuine? Second, is the removing parent’s application realistic? See Payne v Payne [2001] EWCA Civ 166 and also Z v XWN [2018] 3 HKLRD 644. With respect to the first question of concern, the Family Court will look at whether the removing parent’s motivation is genuine and that the removal is not for selfish reasons or to exclude the other parent from the child’s life. The Family Court will also look at whether the decision to remove the child is well-researched and that the proposals in place for the child are practical. Practical considerations can include schooling and proximity of extended family allowing the child a support system. With that being said, ask yourself: Where will my child attend school/daycare? What community will we plan to live in? What family and friends will my child be surrounded by and what support system do I have in place? These are things to consider because the Family Court will consider these factors when deciding what is in the best interests of your child. Once the Family Court considers the removing parent’s motivation and practical considerations for the removal of the child, the Family Court will then look at the opposing parent’s reasons for the opposition. Here, the Family Court will also look at the opposing parent’s motivations and the extent of detriment the opposing parent will face if the application is granted for the other parent to remove the child. The Family Court will also consider the detriment to the removing parent in the event the application is refused and what it would mean for him/her. It is important to remember that whilst all of these factors will be considered by the Family Court, it will all be considered in light of the welfare of the child.

2. Your Personal Plans: In keeping with the theme of the welfare of the child, the Court will likely request detailed information regarding your personal plans as well. Your plan is important because it directly relates to the welfare of the child. For example, what type of employment do you have lined up once you move and how will this help you support yourself and your child? Are you moving for personal reasons such as a new marriage? Are you pregnant and your new husband lives in a different city? These are all factors the Court may take into consideration when making its final orders so the more information you can provide the Court, the better.

3. Frustration Of Contact: As noted above, one thing you will want to reflect upon is the reason behind your decision to move with your child. Are you trying to frustrate your child’s contact with your ex-spouse? If that is your goal, you may want to think twice before you file a motion for a relocation because it is likely that your motive will become transparent through court proceedings. Once the Family Court finds that you are moving to frustrate contact with your ex-spouse, it will play into the Family Court’s decision to allow your relocation.

Make an informed decision that is based on what you know to believe is in the best interests of your child as this will be the Family Court’s paramount consideration when ordering a relocation. Finally, it is important to note a few things as we end this article: First, there is no presumption of favour just because you are the primary caretaker of the child. Second, remember that you cannot unilaterally remove your child from Hong Kong without written consent from the other parent or leave of the Court. If you attempt to remove your child without the other parent’s consent and he/she becomes aware of this, the other parent could easily serve an order on the Director of Immigration to restrain your child from being removed from Hong Kong. Any questions you have about a relocation should be carefully discussed with your solicitor so you are aware of all the risks involved.

Considerations Before Relocating Your Children

Hong Kong is a cosmopolitan city, attracting many individuals from various countries to live, work and raise children. In the heat of a divorce, many expatriates may decide they no longer want to remain in Hong Kong and many times, individuals decide to relocate back to their home country. Unfortunately, this may be a complicated situation if you and your spouse are from different countries and the neutral destination to raise your children may continue to be Hong Kong. With that being said, if you are set on relocating with the children in the midst of a divorce, there are important things to consider before you make a final decision to move away with your children.

First of all, if your spouse does not agree to you and your children’s relocation, your plan for a fresh start may not be as easy as you think. Relocation applications can be extremely expensive and can result in a long drawn-out litigated process through the Family Court system. While the Family Court will consider your request to move the children out of Hong Kong, it is usually not a quick decision but rather a well thought-out order by the Family Court. Thus, it could be months or even years before you are given the green light to move with your children to another country.

Before you make a decision to remove your children from Hong Kong, here are some helpful tips to consider before you make this life-altering decision:

1. Think About the Best Interests of Your Children
Is this move beneficial for your children? When you relocate your children, you are moving them away from the other parent. That may be appealing to you in a messy divorce, but to your children, this may be a devastating reality. Think about what is in the best interests of your children first and foremost. If your ex-spouse has an equal timeshare with the children, it may not be that easy to move the children away from their current home country. You will also want to consider the fact that you may be moving your children away from the support system (both family and friends) that they are used to. When this becomes a litigated matter, your desire to move away may not happen immediately, so you also need to consider what the best timing is for your children’s transition in this relocation. If your children are old enough to understand your decision to move, you may want to have open dialogue with them as to their wishes on whether they want to move at all.

2. Have a Plan
Have you thought out the relocation plan all the way through? What school will your children attend and is this school up to par with the current school that your children are attending? Who is going to help care for the children when you are unable to be there for them? Do you have family and/or friends who are in the vicinity to help with childcare and be a support system to you and your children? Do you have a job lined up and is this really a better opportunity than the current employment situation that you are facing in Hong Kong? These are just a few questions to ask yourself prior to the relocation of your family. These are also some questions the Court will want you to explain prior to making its decision so it is important to have a plan and not make a decision based on a whim.

3. Communicate With the Other Parent
Communicate with the other parent about your desire to move. You may be surprised that he or she may be willing to work with you in allowing the relocation. This will also help you avoid costs associated with a litigated motion to move. Communicating with the other parent will also help you and your ex-spouse figure out an appropriate parenting plan and visitation schedule, which may include online “virtual visitation” through Skype, Facetime or ZOOM. It is also important to discuss travel expenses for visitation now that the two of you are no longer living in the same city/country. Open communication may reduce conflict between you and your ex-spouse and reassures the other parent that you are not trying to cut him or her out of the children’s lives. It shows the other parent that you want them to be involved despite the distance.

These are some important questions to ponder upon before you make an ultimate decision to move forward with a relocation application. It is important to remember that Hong Kong is a member of The Hague Convention on the Civil Aspects of International Child Abduction and any individual who unilaterally and wrongfully removes a child from the jurisdiction will be subject to the Convention. Thus, it is important that you speak to a solicitor in this process so that he/she will be able to help you navigate the legal system in this life-changing decision. Ultimately, this should not be an impulsive decision but one that is well thought out and planned appropriately.