Category Archives: Best Interests

Questions to Ask Your Solicitor

Many families are back in Hong Kong after a long, extended summer away and the focus is now on settling back into a routine with your family and children. For some, now that the chaos and fun of summer is over, it is the opportune time to regroup and sit down with your significant other to talk about the hard topics that may have been swept under the rug for the sake of summer fun. It is during this new season that many couples have considered speaking with a solicitor to get their queries answered about separation, divorce, custody and all the other important topics related to a split.

Before any major decisions are made about a divorce, it is important that individuals educate themselves about the separation and/or divorce process in Hong Kong and education includes spending a good 30 minutes to an hour with a solicitor specializing in divorce to answer all the questions you may have about what a divorce could mean for you and your family.

In this article, we will list out all the questions you should take with you and ask your solicitor in your initial consultation so you have a handy checklist on what information you need to make an informed decision about your divorce.

List of Questions To Ask Your Divorce Solicitor In The Initial Consultation: Here is a list of questions to ask your divorce solicitor in an initial consultation. Please be minded that you may want to add to this list of questions based on your personal circumstances.

What is your experience in family law? Can you tell me a little bit about yourself and your experience handling these types of matters?
What is the difference between a separation and a divorce in Hong Kong?
Who is likely to obtain custody/care of the children? Do the Courts in Hong Kong give preferential treatment to mothers?
If I receive primary care of the children, will my partner still have the ability to make joint decisions on issues like religion, schooling and healthcare?
I want to move away from Hong Kong with the children, what process do I need to go through in order to obtain this?
How will the Courts in Hong Kong determine the division of assets and debts? Is it 50/50?
How will the Courts in Hong Kong determine alimony and child support?
Instead of going through the Court process, are there other alternative methods to resolve the outstanding issues with my spouse? For example, is mediation or collaborative divorce an option in Hong Kong?
If I go through the divorce, can I speak directly to my spouse and negotiate with my partner on my own?
How much will you charge me for a divorce? What about extra fees?
What do you anticipate/estimate my fees will be to finalize the divorce?
Will you be handling my case or do you have a team/associate assisting as well? How much do you charge per hour?
If this becomes a litigated case, do I need to also hire a barrister?
Can we ask that my spouse pay for or contribute to my legal fees?
Based on the information provided, what would be your suggested strategy for my case?
How long do you think it will take to resolve my case on the divorce, children and finances?

List of Questions To Ask Your Divorce Solicitor During The Proceedings: is important that during the divorce process, that you are fully informed of your case and the progress being made. Questions that you pose to your divorce solicitor will vary depending on your own unique circumstances. Here is a list of questions you may want to ask throughout the proceedings so that you are on top of your case and fully informed of its progress.

Can we review the progress of my case to date and discuss the strategy going forward?
How much longer do you think it will take to conclude my case?
How much have I paid in costs thus far? Can you provide an estimate of how much it will cost further, to conclude my case?
Is there anything you can do to move this case forward faster?
I am not happy with the result/progress of my case, is there anything we can do?
Do you think it is time to send out a settlement offer?
I have moved on and want to remarry, can I do that even though my divorce is not yet concluded?
My financial situation has changed since the commencement of my case. How can alimony be adjusted due to the change in circumstances?
Now that my children are older, I want to spend more time with them and they want to spend more time with me. Can I adjust custody/timeshare now that they are older?

You are now armed with important and key questions to assist you in the process of your divorce with your solicitor. Each case is different so you will have your own specific questions unique to your own circumstances. Your solicitor should always be available and willing to answer any and all questions you may have. If there is a lack of communication between you and your solicitor, this should be considered a concern as you should always be aware of the progress of your case and the direction it is headed. If there is a breakdown of communication with your solicitor, it may be time to have a difficult conversation with your solicitor or move on with another solicitor to support you on your journey.

What To Expect At A Divorce Trial

For some couples going through a divorce, key decisions about finances and the children may end up being decided by a judge at trial. This happens if you and your spouse cannot agree on how to resolve issues between you both or with the help of a mediator. For many couples entering the world of divorce, trial is the last thing on their minds and many individuals cannot believe that their divorce has to be decided by trial. The reality though, is that if you and your spouse cannot agree on key issues, your case will proceed to trial in Hong Kong and these decisions will be made by one person: a judge. So, let’s discuss trial and what you can expect leading up to trial:

1. How Did You Get Here?
The first question many couples ask, is how in the world did they end up going to trial in a divorce?! When couples cannot agree on key issues mainly related to ancillary relief (finances) and the children, they will have no choice but to continue through the Court process in Hong Kong which ultimately will end up at trial if decisions/agreements cannot be reached by the parties in the meantime. For many couples, trial is burdensome not only because it is extremely expensive, but also because it is emotionally taxing on the couple, but also the children and the effect on them of having parents who have to endure the lead up to and during the trial. Many solicitors will thus encourage couples to try and mediate during the divorce and come to an agreement on issues by way of a Consent Summons, so that the decision related to the breakup is made by the couple and not by a judge. Unfortunately, this is not necessarily an easy feat for many couples as divorce can bring out a lot of resentment and anger. However, if you are able to put the anger and resentment aside and come up with a compromise between you and your soon-to-be ex-spouse, this will always be encouraged to avoid trial.

2. Preparations for Trial
Prior to trial, your solicitor and barrister team will be hard at work preparing all the necessary documents to be filed with the Court ahead of the trial. Many times, the trial judge will hold a Pre-Trial Review hearing, to get a better understanding of the issues to be decided at trial and what work needs to be done ahead of time. At a Pre-Trial review hearing, the judge will provide each side with deadlines for filings and any other deadlines the judge sees fit. Your solicitor and barrister will need to adhere to the deadlines set out by the court and it will require a lot of discussion with the other side so that both sides are fully prepared by the trial date. Closer to the trial, your solicitor and barrister team will also hold several meetings with you to prepare you for trial and the testimony you will be giving. They will run through the types of questions the other side may ask you on examination and how you should conduct yourself whilst on the witness stand.

3. What to Expect at Trial
Your solicitor and barrister team will handle each day with expertise and ease so as to make you feel comfortable and in good hands. The trial will be emotionally taxing as you and your spouse will be taking the stand and will be examined not only by your barrister but by the other party’s barrister as well. It is important for you to remain in constant communication and in step with your solicitor and barrister team so that you understand what is happening each day and talk to them about how the trial is proceeding. It is important to note that the judge will require you to handle the proceedings with respect and dignity. This means wearing clothes that are conservative and respectful. It is also important that you do not burst out with your thoughts and comments when your ex-spouse is on the stand or when his/her barrister is asking questions. You should answer questions directly and succinctly and not make personal attacks on your spouse as it is not the forum to do so, rather the judge simply wants each party to present their side so he/she can make the best and informed decision for you and your family.

4. Costs For Trial
What many couples do not realize, is that trial is extremely expensive. Leading up to the trial, there are hours upon hours of preparation by your legal team. Your legal team will often include a team of solicitors which can include partners, associates and trainees all assisting on the case. Your team may also include senior and junior barristers, depending on the complexity of your case and barristers will require their fees to be paid well in advance of the trial. Depending on your case, you and your spouse may be responsible for fees related to experts and reports by experts on issues related to finances and the children. There are also fixed costs to consider as well, including fees for document preparation such as photocopying and filing of documents and the related court fees. Finally, if you are unable to succeed at trial and are the losing party, you may also be responsible for the fees and costs incurred by the other party. Thus, you could potentially be responsible not only for your own fees and costs, but the fees and costs of your ex-spouse. The costs for trial can be overwhelming and should not be taken lightly. You should also consider that if you or your spouse lose at trial, you may have an opportunity to appeal and this too will be extremely costly as you will remain in the litigation process and continue to incur fees for an appeal. Thus, it is something to carefully consider before deciding to move forward with trial.

5. Can You Stop Your Trial?
Like a divorce, a trial can also be stopped before it goes forward. Your solicitor should be speaking to you about options to prevent the trial train from moving forward at epic speed. Other options that you could consider to stop a trial from going forward, is mediation, private dispute resolution with a judge or retired judge, or even sitting down informally with your ex-spouse and coming up with an agreement that works for you both preventing potential loss as a result of a trial.

Sometimes trial cannot be avoided especially if you are in a heavily litigious divorce and are dealing with a difficult ex-spouse. However, if there are certain issues you can compromise on and work on resolving with your ex-spouse, do so and put as much attention and effort into a resolution as trial can have devastating emotional effects on you and your children. The time spent to prepare for trial is also time that cannot be returned to you so it is important to consider all of this before you forge ahead with a trial.

Offers of Settlement

Divorce can be overwhelming for each individual involved, to the point where it can sometimes feel as if you’re on a bullet train and cannot get off. It is important for you to know however, that despite where you are at in your divorce, there is always opportunity to come to an agreement with your spouse and settle differences without Court intervention. One option to consider during any stage of the divorce process is an offer of settlement. Let’s take a look at offers of settlement and what you should consider before making an offer:

1. What Is A Settlement Offer?
A settlement offer is a letter sent to your spouse in a divorce setting out proposals for the resolution of issues that are in dispute. This can include issues in dispute including ancillary relief, custody and division of property and any other issues that are specific to you and your spouse. A settlement offer can be sent as an “open” offer which means it can be submitted to the Court at any time or it can be sent “Without Prejudice” and are not admissible in evidence in Court proceedings. If your settlement letter is marked “Without Prejudice, Save as to Costs” it is not admissible in evidence in Court proceedings except when it’s related to the issue of costs. This is discussed further below under “Calderbank” offers.

2. Why Are Settlement Offers Beneficial?
Sending a settlement offer to your spouse can be beneficial because it sets a basis for resolving issues in dispute. Even if your spouse does not agree to the proposals, it can be a starting ground to discuss the issues further and try and come up with a resolution that you can both be happy with. Settlement offers can also be beneficial if you and your spouse want to attempt to resolve issues in dispute with or without continuing to move forward with the Court process which can be timely and very expensive. It is important to remember that when sending out settlement offers, that you speak to your solicitor to assist in preparing an offer that is reasonable and practical.

3. What Are Calderbank Offers?
You may have heard about “Calderbank” offers. Calderbank offers are sanctioned offers and refer to “Without Prejudice, Save as to Costs” offers of settlement. This means that when a case is brought before the Court, a Judge in his or her discretion as to costs, may take into account an offer expressed as a “Calderbank” or “Without Prejudice, Save as to Costs” letter. It is important to discuss this with your solicitor as to the timing of Calderbank offers as they can play into your litigation strategy during the divorce proceedings. Many times, Calderbank offers are sent by a party before a substantive hearing where issues will be dealt with by the Court.

4. Offers in Good Faith:
A settlement offer should be reasonable and practical and more importantly, made in good faith. The Court in Hong Kong stress the importance of negotiating in good faith and an offer of settlement is your attempt to negotiate. Negotiations should be done in a constructive manner and it could result in adverse consequences including costs if it is not conducted in good faith. Good faith includes cooperation between the parties, exploring reasonable settlement options and engaging in constructive discussion. Ignoring settlement letters or failing to provide substantive responses is not helpful and could result in adverse consequences.

Finally, If you have a solicitor who does not encourage good faith in your settlement attempts, it may be time to consider a new solicitor as solicitors can play an important role in encouraging settlement and resolution.

Children’s Views in Divorce and Their Mental Health

As part of our series on mental health, we have discussed with several mental health professionals the key to assisting children through divorce and the “new normal” that a child will face in divorce.

One of the key factors in helping to ease the pain a child may go through in divorce as expressed by several mental health professionals in Hong Kong is to create an open environment for a child to communicate with their parents without the fear of reprimand or shame.

In a divorce, a child may have a lot of questions about what is to come and the uncertainty can sometimes be more frightening then the reality itself.

Here are some tips on how to ease the burden of divorce upon your child and some of the key questions your child may have throughout the daunting process:

Will A Child Have A Voice In Divorce?: One of the key questions a child may have in the divorce process is whether his/her wishes and desires will be considered in the decision-making process or whether the child will simply have to follow along with what the parents and the courts decide for his/her life. Whilst it is appropriate for a young child to have the parents make the necessary decisions in their best interests, an older child may be allowed to voice their wishes and desires in the Family Court proceedings. In Hong Kong, the Family Courts will appoint a Social Welfare Officer to assist in the decision-making process of the Judge to determine what is in a child’s best interest. This is done through various in-depth interviews with the child and in some cases, by having psychological reports conducted. Generally speaking, it is always an ideal situation if the parents can agree on the best interests of the child rather than having Court-appointed strangers make the decision for them. Thus, this brings in the importance of having healthy co-parenting relationships in order to make compromised and healthy decisions for the children of the family. Many times, having open communication with your child will assist in the decision-making process of the parents because the child’s wishes are respected and taken into consideration.

Parental Disputes Should Not Be Resolved Through A Child: Many times, children are caught in the middle of parental disputes especially when the parents cannot get along and are fighting a legal battle in the Family Court. The worst thing parents can do is drag the child into the litigation. Many times, this is done by the parents discussing the divorce with the child, asking for emotional support from the child about the divorce and bad-mouthing the other parent so as to alienate the child from the other parent. It is important for a child to understand that the divorce is an adult issue to be discussed and resolved between the two parents. It is not for children to become involved in the divorce or be used as pawns in the negotiation process of the divorce. Children should not be seen or used as messengers and thus, any necessary communication should be between the parents and not through the child. Whilst it may be tempting to use a child as a weapon in a divorce, it is important for parents to do their best to refrain from such behaviour and instead find that support from other adults it be solicitors, barristers, friends or other family members. Children are not designed to handle the burdens of a divorce and such trauma could result in disruptive behaviours, anxiety and other psychological issues.

Healthy Co-Parenting Means Healthy Children: Having a healthy co-parenting relationship provides a child with an example of how broken families can still function in a respectful, friendly and loving way. Healthy co-parenting means respectful language is used when communicating with the other parent, refusing to bad-mouth the other parent when disappointed by the other parent’s actions and keeping adult conversations between the adults. Healthy co-parenting also means respecting the other person’s time and encouraging a relationship between the child and the other parent. In a divorce, one of the key concerns that a child may have is whether they will be able to spend time with the other parent (the non-custodial parent). In Hong Kong, one parent is typically provided with “care and control” and this parent is usually the primary caregiver on a day-to-day basis. The other parent is granted “access” and is considered by the Family Court, the “non-custodial parent.” When the non-custodial parent is granted “access” to the child, the primary parent should facilitate access so that the child can spend time with the other parent as agreed or by the Court order. Making access difficult not only creates tension between the parents but it also places an overwhelming burden on the child who then believes he/she must pick sides between the parents.

Whilst divorce is a difficult process for adults, the children also suffer greatly and they also must process the change. Children need their parents to help them through the process and cannot rely on themselves to get through the ordeal. Thus, if you need assistance through the divorce, speak to friends, family and professionals to help you navigate the challenges. Speaking with your solicitor will also be helpful as your solicitor has seen many families through a divorce and can provide you with useful tips on how to navigate the challenges that you face and the challenges that your children face.

Divorce and Mental Health

The team at Hong Kong Divorce believes in the importance of self-care and health practices that nourish the mind, body and soul. Healthy relationships really stem from a healthy mental state and divorce is a traumatic experience that can impact both your health and the health of your children.

As we have seen in our discussions with mental health professionals, learning how to communicate with one another and engaging in open discussion with your children assists in the healing process of divorce and stepping into a hopeful better future which becomes yours and your children’s “new normal.”

Through our many discussions with mental health professionals across Hong Kong, we have gathered useful tips from these experts from a mental health perspective on what individuals going through a divorce should remember during this difficult time:

Tip #1: Learn to Communicate from the Heart – While changing behaviours is desirable, ultimate change comes from heart change. According to Dr. Ida Ng, Licensed Psychologist, “[l]earned behaviour is not what naturally flows from the heart where emotions reside and by not addressing the emotions, the issues are not able to resolve.”

Tip #2: Accept Change – In a divorce, individuals go through several changes and they are now learning to live a world where they must accept a new reality or a “new normal.” For many, the change is so drastic that it is difficult to accept. Learning to accept that changes are occurring and allowing yourself the time and space to adapt to the changes is key to healing. This includes the changes your children may be experience as well. Provide an open space and forum for your children the ability to speak freely about the changes they are experiencing and the corresponding emotions related to such change.

Tip #3: Communicate, Communicate and Communicate More – Communication will be key during your divorce. Individuals must learn to employ effective communication skills not only with their respective ex-partners whether it be through the process of divorce or during co-parenting challenges, but communication will also play a big role in the healing of your children. This may be the opportune time for couples to attend couples therapy and for children to also attend therapy to allow them a safe space to communicate their feelings and emotions related to the divorce. Dr. Ken Fung, clinical psychologist at the Jadis Blurton Family Development Center states that “[c]ouples therapy is a tool/platform to create a safe, comfortable and natural platform for couples to communicate with each other. It is a way for couples to connect emotionally because many couples have been talking intellectually but that didn’t work out so in my sessions, I help them connect emotionally.”

Tip #4: Employ Empathy and Compromise – As difficult as it might be in a divorce, it is important for couples to understand where their partner and his/her views are coming from. By only focusing on your own views in a divorce, it becomes difficult to reach a compromise which is essentially a key element in having a healthier divorce and avoid a divorce that is litigious and stressful. The ability to empathize and compromise will play an even bigger role if you and your spouse are forced to co-parent. If your children are able to see that both parents can co-parent in a respectful way, you will see a healthier family dynamic post-divorce and this will allow your children to learn from such behaviour in how to navigate their own relationships going forward.

Finally, a uniform consensus among mental health professionals is to mix therapy along with other self-care alternatives. You may therefore want to consider focusing on self-care activities such as meditation, acupuncture, reiki or any other healing methods that result in peace of mind and relaxation. You may also consider focusing on your hobbies which can bring great joy and allows your mind and spirit to relax during one of the more stressful times of your life.

The team at Hong Kong Divorce has been conducting in-depth interviews with several mental professionals around Hong Kong and these Spotlight Profiles can be found as a resource on our website.

Questions to Ask Your Solicitor

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