How To Prepare For Mediation

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How To Prepare For Mediation

One of the most cost-effective ways to resolve your divorce is through mediation. In order for mediation to succeed, both parties need to be willing to come to the table willing to discuss all issues and with a compromising spirit.

In an earlier article published on www.hongkongdivorce.com, our special contributor Shanna Quinn, a professionally trained mediator, outlined family mediation and what it entails in Hong Kong.

In this article, we will discuss three (3) key ways to succeed in divorce mediation and how you can come out of mediation with a sense of gratitude and accomplishment.

1. Keep Your Emotions Out: It is not uncommon for spouses to use mediation as a vehicle to lay out emotions about all the wrongdoings that had occurred during the marriage. Whilst it is important to express your opinion and communicate your feelings during this complicated season of your life, the purpose of mediation is to resolve issues and move forward, not to rehash the past. By keeping your emotions out of the mediation, you are recognizing that a divorce is simply a business transaction, whereby you and your spouse are outlining the legal terms to dissolve your marriage. Thus, do your best to keep your emotions out of the transaction and the path towards resolving your divorce will be a lot more seamless.

2. Be Willing To Compromise: In order to move forward in resolving your divorce, each spouse has to be willing to compromise. In a divorce, there are no real “winners” or “losers” because at some point each of you will walk away without getting everything that you had wished for. There has to be a certain amount of compromise in order to resolve your divorce. To successfully compromise, you will need to be willing to hear the other side and the reasons behind their position. Be willing to listen and empathize with your spouse and you may soon realize that your spouse may also extend the same courtesy to you as well. A settlement meeting will provide you and your spouse with a platform to negotiate and figure out a plan that you both are willing to accept.

3. Ask Questions, Take A Break, Ask For Time: Mediation will provide you with an opportunity to hash out details of your divorce without the pressure of the Family Court issuing orders and making decisions for your family. If you are in mediation and you do not understand the legal jargon or terms being stated, be sure to speak up and ask questions. If you are represented by a solicitor or barrister, do not be afraid to stop the meeting and ask your solicitor or barrister to explain everything to you. No question is irrelevant as your understanding of what is being discussed will affect your future and your family’s future. If you need a break and need time to process what is being negotiated or offered, ask for this time and each person in the meeting should respect your request for a break. You are entitled to be involved throughout the entire process and you can only be involved if you understand what is being discussed and negotiated.

While in some cases one mediation is sufficient to resolve all of your issues, some divorces require multiple mediation meetings to finalize outstanding issues. If your matter requires several mediation meetings, it is important to note that any prior meetings are not without benefit since they are ALL stepping stones to resolution.

What Is Spousal Maintenance And How Is It Calculated?

Upon divorce, it is open to the Court to make various financial orders between the parties. This article addresses spousal maintenance, namely periodical payments upon divorce from one spouse to the other (either wife to husband, or husband to wife), and explains the general reasoning behind the determination of the amount of such award.

Periodical payments are the payment of regular maintenance from one spouse to the other, usually on a monthly basis. Periodical payments, if awarded, are usually ordered to last until the receiving spouse remarries, or for the duration of their life. Periodical payments may also be expressed to cease once the receiving party begins permanent cohabitation with another partner, although this would be in the form of an agreement reached by way of consent, it is not an order open for the Court to make.

As periodical payments can last for many years, they may be “index linked”, meaning that the maintenance will increase to reflect the effects of inflation over time.

When considering the appropriate figure for spousal maintenance, the Court will take into consideration the factors listed in section 7 of the Matrimonial Proceedings and Property Ordinance, Cap. 192:

      1. The income, earning capacity and financial resources of the couple involved.

        2. The needs, obligations and responsibilities of the couple.

          3. The standard of living enjoyed by the couple before the divorce.

            4. The age of the parties involved and the duration of the marriage.

              5. The individual contributions made by the parties to the welfare of the family.

                6. Any physical or mental disability of any of the parties involved.

                  7. Any loss of benefit for any of the parties due to the divorce.

Therefore, the Court will consider the overall financial position of each party both at the time of proceedings and in the foreseeable future. Generally speaking, the lifestyle enjoyed by the parties during the course of the marriage is also a relevant reference point.

There is no one size fits all application of the above factors, and the Court’s determination of the appropriate amount of spousal maintenance, if any, is inherently subject to judicial evaluation of the circumstances of the case.

Also important to consider is the marital pool of assets for division. How this may be divided will also affect the amount of monthly maintenance that may be awarded.

Generally speaking, if the parties’ marriage has been of a medium to long duration (7 years or more), the Court is inclined to ensure that both parties walk away with financial parity, and neither is left in a financially detrimental position because of choices made throughout the marriage, or without the means to support themselves (for instance, if one spouse gave up their job to be the primary carer of the household and any children of the marriage).

If maintenance is awarded by the Court, it is always open to either party to apply to the Court to vary the amount of maintenance being paid. This may usually be due to a change in circumstances, e.g. one party being made redundant or a change in living circumstances.

In addition to periodical payments, a divorcing spouse may also seek/receive:

  • A lump sum payment; and/or
  • The transfer of property.

These other forms of financial maintenance are covered in separate articles here on hongkongdivorce.com

Financial Savviness In Divorce

It is no surprise that one of the main issues that can cause tension between divorcing couples is money.  It is for this very reason that it is extremely important for both parties to be aware of their financial picture during the divorce process.  Many times, a husband or wife may wish to bury their head in the sand, refusing to deal with the details of the matrimonial asset pool.  This alone can place the individual at a great disadvantage.

Ideally, it is important to be financially aware of the matrimonial finances during the marriage and to be informed of all assets and debts that make up the matrimonial estate.  However, it is common for couples to divvy up responsibilities leaving one party responsible for the collective finances of the home.  This places one spouse at a disadvantage and when the couple decide to divorce it becomes difficult when all finances must be disclosed and division is necessary.  Not to worry however, it is never too late to educate yourself on your finances to assist you during the divorce process.

When you divorce in Hong Kong, one of the first things you must fill out is a Form E.  This is a very detailed form where you and your spouse must each disclose all assets at their current value as well as liabilities and ongoing/future expenses.  This allows the parties and the Family Court to gain a more in-depth view of the matrimonial pot.  Gaining an overview of the matrimonial pot will be exceptionally more difficult if your spouse is not forthcoming about the finances and you are not well-versed in what you and your spouse have in terms of assets and debts.

It is for this very reason that it is important to be financially savvy during the divorce process.  Here are a few things to keep in mind so that you are in a better financial position both during and after your divorce:

  1. Organize, Organize and Organize More: Everyone is talking about organization guru Marie Kondo.  Well, it’s time to Marie Kondo your finances and organize all your financial documents so that you know what assets and liabilities you have.  To save trees, you can organize financial documents in folders on your computer and keep them in a confidential file that only you have access to.  By saving and keeping all key financial documentation on hand, it will be extremely helpful to you and to your solicitor when it comes time to exchange all financial information with your spouse and his/her solicitor.  By being organized, the process of providing financial discovery will not be as daunting or overwhelming.  I repeat, it is not helpful to dump a suitcase full of unorganized documents at your solicitor’s office.  This will only increase your costs owed to your solicitor at the end of the day if they have to sift through everything for you.
  2. Knowledge is Power: When you are organized, you will have a better understanding of what accounts you have and how much money is owed.  In divorce, your financial picture changes drastically and you will need to come to terms with a new normal when it comes to your finances.  No longer are you partnered with someone who may be contributing to your monthly income.  Thus, if you are educated about your personal finances, you are in a better position to determine a budget for you and your family going forward and create a feasible financial plan post-divorce.
  3. Keep Your Finances Separate Post-Separation: Once you separate, it may be a good idea to open up your own bank/credit card accounts to keep your finances separate and keep track of what you have and/are spending post-separation.  This will also help when the matrimonial pot is being divided and you can easily keep track of expenses if this becomes an issue when discussing spousal maintenance and children’s expenses.

In addition to the assistance your solicitor will be providing you, it might also be helpful for you to consider hiring a professional financial planner.  A financial planner can help you organize your finances and assist you in the budget process to create a foundation for a healthy financial picture going forward.

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