Modifying Financial Agreements/Orders Post-Divorce

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Modifying Financial Agreements/Orders Post-Divorce

Change is constant and one of the things we can count on is that after a divorce, there may be many circumstances that change which require an amendment/modification to agreements and orders made at the time of the divorce.  These changes can involve child custody arrangements, and also financial agreements which were made years beforehand.  What can you do in order to amend or modify financial agreements made either by agreement with your former spouse or through an order by the Family Court?  In this article, we will explore how modifications and amendments can be made and what the Family Court will look at in order to modify/amend financial orders.

  1. How to Modify Financial Agreements/Orders Post-Divorce:
    Generally speaking, if you want to modify or amend a financial agreement, you will need to file a Summons (application) with the Family Court.  Your solicitor can assist with the filing of the appropriate Summons and supporting affidavit in order to request a modification of the previous orders.  Alternatively, if you wish to avoid Family Court intervention, you may want to contact your former spouse or your former spouse’s solicitor through your own solicitor and mediate or negotiate a change in the financial arrangements.  Negotiating a change to your financial agreement through mediation is the easiest, time saving and cost-saving alternative to court litigation and should be considered first before resorting to filing an application with the Family Court.
  2. Consider Negotiating The Financial Modification:
    As mentioned above, it is important to consider negotiating a financial modification rather than simply filing an application with the Family Court. Resolution of an application filed with the Family Court will take a long time as the Family Courts in Hong Kong are backed up with many other applications.  Thus, the waiting time should be considered because you will need to be patient before your case can be heard by a Judge not to mention additional time for the Judge to make a decision about your request which could take months after a hearing. Given that it takes time for the Family Court to hear your case, the prolonged time between filing your application and it being heard will also run up costs which you will incur not only with your solicitor fees but also potential barrister fees if your application is contested before the Judge at a hearing.  It is important to note that even if you go before a Judge, the Judge will usually give you and your former spouse an opportunity to consider coming up with an agreement before he/she makes an Order. Thus, it makes sense that you and your former spouse try and attempt to come up with a compromise, rather than waste time and costs going to Court.
  3. Has There Been A Change Of Circumstances?:
    In the event you and your former spouse cannot come up with an agreement through your own mediation or negotiation, you will need to file a Summons with the Family Court.  In your application, you will want to highlight the reason for the request and explain in detail with proof as to why there has been a change of circumstances.  Change of circumstances can include a loss of job or wages, change of job and wages, medical issues that you may be experiencing and which have resulted in unexpected expenses or your ability to earn a living. You will want to discuss these changes of circumstances with your solicitor so he/she can guide you as to what points should be presented to the Court and what the Judge is likely to consider a good reason for the request for a change or amendment to your financial orders.
  4. Has There Been Any Changes In Need?:
    The types of change of circumstances mentioned above are usually relevant when you are the spouse wanting to modify maintenance orders downwards. If however, you are the spouse wanting to modify maintenance upwards, you will want to provide sufficient reason as to how things have changed that would require the need for more maintenance.  For example, has there been circumstances whereby your child/children have increased costs related to schooling or unexpected medical conditions?

The above is a simple guideline of what you can do if you wish to modify a financial agreement, however each situation will be specific to your own individual circumstance. Depending on how your financial agreement was structured at the time of the divorce, you may not be entitled to modify a financial agreement if there was a “clean break” clause with respect to your spousal maintenance.  It is important to note however, that when it comes to child maintenance there is no “clean break” clause and they can always be modified depending on your circumstances. Generally speaking, in Hong Kong the types of orders that can be varied include: interim maintenance (maintenance pending suit); periodical payments (maintenance), instalments by which a lump sum is payable and an order for sale of a property.  As always, it is important that you speak directly with your solicitor so he/she can guide you through the process and provide adequate advice on whether a modification or amendment can be made, and what you can expect if you file an application to modify or amend a financial order.

Preparing for the Summer Holidays with your Co-Parent

It is never too early to begin your preparation for the summer holidays.  This is especially true if you and your co-parent have difficulties agreeing on the logistics of the summer holidays. If you and your spouse are/were involved in a high conflict custody case or have a history of difficulties when making decisions about the children, preparedness is key ahead of the summer holidays.

Here are some tips on how to prepare and make seamless transition into your sunny summer holidays with ease and peace!:

  1. Review Your Agreement/Orders: Before you buy your tickets and make plans for the summer holidays, it is always a good idea to review your agreement with your ex-spouse and any orders that the Family Court may have issued with respect to child custody arrangements and the holidays. It is important to review your agreement/orders so that you are in compliance with the custody arrangements for the summer holidays.  As a safeguard, it may also be a good idea to speak to your co-parent about your plans so that you are on the same page about the children’s holiday schedule and there is no room for miscommunication or misunderstandings.  Another way to safeguard any issues with your co-parent is to also plan in advance and accordingly so that if there are issues with cancellation or delayed flights, then you have sufficient time to bring the children back home in time for your co-parent’s holiday plans with the children and/or the start of school.
  2. Communicate with your Co-Parent: As mentioned above, communication with your co-parent is key to avoid any miscommunication or misunderstanding when it comes to the children’s holiday schedule.  If you are or were involved in a litigious divorce and it is difficult to communicate with your co-parent, then speak to your solicitor about communicating your travel plans with your co-parent well in advance of your travel plans.  The last thing you or your co-parent want to deal with ahead of the holidays is disagreement and argument over the children’s holiday plans and/or during the holidays as this will only ruin your time with the children and your children will sense the tension.  You can avoid such disagreements and arguments by speaking directly with your co-parent about your plans with the children and ensure your co-parent is fully aware of the plans before any tickets are purchased.
  3. Provide Adequate Details About The Children’s Holidays: If you and your co-parent are on good terms, this will not be a difficult task.  However, if you and your co-parent are having difficulties in communication and/or do not speak on a regular basis, it may be a difficult ask to provide transparency with respect to the children’s holidays.  Many times, litigious co-parents do not want the other parent to know about the details of their holidays and do not feel the other parent is privy to these details.  Whilst this is understandable in certain situations, it is important to remember that this is not about you.  This is about the children.  It is important for your co-parent to be made aware of the details of the children’s travel plans.  This includes a detailed itinerary of travel such as the date of travel to/from their home and if there are additional travel plans within the trip.  Other details you should provide to your co-parent is the contact details of the children during the trip and any other relevant details that may be important.  For example, if your child is traveling with you and has additional travel plans within your trip to travel with family friends, this is something that should be disclosed to the other parent.  The other parent is entitled to know where the children are during the holidays and how to reach them.  It is also important to allow your children to be able to communicate with your co-parent even during the holidays.  If your agreement/orders allow for your co-parent to have telephone/FaceTime with your children, you should ensure that the agreement/orders are followed even during the holidays.
  4. Ensure Finances Are In Order For The Holidays: It is also important that before you embark on your journey, that your finances are well in order with respect to the children.  For example, if your co-parent is required to provide extra monies for the children’s holidays, be sure to communicate this with your co-parent so that you are both on the same page about the activities and adventures the children will be participating in on the holiday.  It is important to ensure that the shared costs for the holidays are shared indeed.   Any disagreement about costs related to the children’s holiday plans can easily be resolved with direct communication with your co-parent.

If there are disagreements about the children’s holidays and there is no way to handle the disagreement, this is the time when you will need to speak to a solicitor.  If you and your spouse are in disagreement over the agreement/orders regarding the children’s holidays, you may require court intervention. If court intervention is required, it is important to recognize that it will take a considerable amount of time before you can be heard before a judge and before a decision is made. It is for this reason that you should prepare well in advance of the children’s holidays to ensure that you and your co-parent are in agreement with the children’s plans. If there is no agreement, then at least there will be sufficient time to mediate or seek court intervention before the holidays approach.

 

Cost Considerations in a Divorce

When individuals consider divorce, the main focus is generally centered around child support and maintenance (i.e. alimony/spousal support).  What many individuals do not consider when filing for divorce are the costs related to the actual divorce such as filing fees, fees for solicitors and barristers, fees for experts and other cost considerations such as trial.

In this article, we will dive deeper into some of the “hidden” fees you will need to consider when you are planning your divorce case.

  1. Court Fees: When you file a Divorce Petition, the court has mandated filing fees for the filing of your papers.  If you have hired a solicitor to take care of all the paperwork and filing of your Divorce Petition, these filing fees and the fees incurred for clerks at your solicitor office to travel to/from the courthouse to file such paperwork will be included in your monthly bill.  You should speak to your solicitor about the court fees so you are aware of what it costs to file your paperwork. You should also be informed of the hourly rate charged by your solicitor’s clerks to travel to/from the courthouse to file paperwork and also to serve papers to your ex-spouse’s solicitors.
  2. Solicitor and Barrister Fees: If you have hired a solicitor, your solicitor will be charging you for the work done on your case. The hourly rates are generally outlined in your solicitor’s retainer agreement.  This retainer agreement should be read carefully as it will list out the terms of your agreement with your solicitor. If you do not understand the agreement, you should ask questions so that you are fully aware of the terms before you sign the agreement.  In addition to the fees incurred by you for your solicitor, you may also need to hire a barrister for your case if you proceed to a hearing and/or trial.  Generally speaking, a barrister is hired by your solicitor firm.  Therefore, your barrister will bill your solicitor firm but these fees are then charged to you in your monthly bill.  You should have a discussion with your solicitor before a barrister is hired on your case, so that you are aware of your barrister’s fees and what you will owe for their work on your matter.
  3. Fees for Experts: In the more complex divorce cases, you will need to hire experts.  Experts can be hired for various reasons including valuations for real property, businesses and valuable items such as art and jewelry.  Experts may also be hired for tax issues or issues related to trusts.  Experts may also be called upon for child custody cases where a psychological evaluation of the children are needed.  Another example of a third-party “expert” may be a parent-coordinator who assists you and your spouse with child custody issues.  If your case requires an expert, there will be costs associated with the hiring of these experts.  Generally speaking, both parties would be required share the costs of the hired experts unless an agreement is reached otherwise. Similar to barrister fees, the experts are hired by your solicitor firm. Therefore, your experts will bill your solicitor firm but these fees are then charged to you in your monthly bill.  Before you agree to retaining an expert for your case, it is important that you speak to your solicitor about the fees associated with the expert so you have full transparency about what you will owe for these third-party costs.
  4. Fees for Hearings/Trial: When you are going through a divorce, there will be many hearings leading up to a trial.  For example, any time you or your spouse file an application, a hearing will be set by the court.  In addition to these hearings, as you go through the divorce process there may be other mandated hearings that you have to attend such as a children’s dispute resolution hearing or a financial dispute resolution hearing. If your case is set to go to trial, you will also generally be required to attend a pre-trial review hearing in preparation for trial.  Trial itself can last several days depending on the complexity of your case. It is therefore important to discuss these anticipated costs with your solicitor so you know how much it will cost you depending on what route you will take.  Many times, individuals will come to the conclusion that it is much more cost-effective to compromise on key issues and come to an agreement with their spouse rather than move forward with hearing after hearing and then ultimately a trial as hearings and trial is extremely expensive.  If you move forward with a trial, there will be high costs not only for your team of solicitors but also the barrister(s) and experts involved in your case. For many litigious and complex cases heading to trial, your legal team can consist of 5 to 10 individuals who many times, all charge on an hourly basis.
  5. Other Miscellaneous Fees: In addition to the above-fees, you should also discuss with your solicitor whether there are other “hidden” fees you might not be aware of. For example, you will be charged by your solicitor firm for photocopying, faxes, and service of documents. Ask for transparency when you hire a solicitor so you are aware of all the fees that you will be charged each month.  Most of this is outlined in your retainer agreement so again, it is important for you to read the entire retainer agreement before signing the document.  It is also important that when you receive your monthly bill, you read through the bill rather than gloss over it.  If you have questions about your bill, speak to your solicitor so you can clarify what the charges are for.

It is important that you take charge of your finances during a divorce and this includes the fees and costs that you will be responsible for in your divorce. It is therefore imperative that you have full transparency of what you are being charged and what the anticipated costs are.  Do not be afraid to speak to your solicitor about costs as this may determine the course of your divorce.  If you are looking to resolve matters quickly without additional costs, it may be a good idea to work on a settlement with your spouse without the need for court litigation.  Mediation is a wonderful alternative to court litigation and should be considered!

 

Steps to Moving On After Divorce

Many individuals describe the divorce experience as being similar to a death in the family.  For some, the divorce process can take years and it is truly an emotionally and physically taxing journey that requires patience and resilience.  At some point however, once the divorce is finalized, it will then be important for you to move on with your life.  This should certainly be an exciting time for you as life is finally moving on and you are embarking on a new adventure.

  1. Get Your Finances In Order: This has been a central theme in all of our articles here at Hong Kong Divorce.  Once you are divorced and have a better idea of the monies coming in and going out, it is important to ensure that your finances are in order.  This may involve retaining a financial planner to assist you in helping you create a plan or a budget which carefully and thoughtfully considers your day-to-day needs and for your future. You will want to review your finances regularly and keep track of your spending and saving patterns so that you can continue to be aware of where you stand financially post-divorce. This will involve good record-keeping and if you are unable to do this yourself, you can always enlist the help of a professional to assist you or download relevant finance apps that could help you keep track of your finances in an organized manner.
  2. Be Thoughtful In Speaking About The Divorce With Your Children: If you have children and are co-parenting post-divorce, it is important to speak appropriately to your children about the divorce and about the other parent. If you want to maintain peaceful and cooperative co-parenting, you will need to play a big role in keeping the peace.  Children should be kept out of adult discussions and should not play a role in having to mediate arguments or disagreements between you and your spouse. If you have any issues, speak directly with your co-parent and do your best not to disrespect your co-parent by bad-mouthing him/her to the children.
  3. Join A Support Group: If you are having a hard time moving on after divorce, this may be the time to consider joining a support group.  A support group or therapist can help you process the feelings you are going through post-divorce and a support group may provide you with new friendships with like-minded individuals going through the same process.  Sometimes, discussing your divorce with family and friends may not be enough and they will only want you to skip ahead to your happy ending. However, moving forward may require you to process the divorce and discuss it at great length.  A therapist or support groups can provide you with this support and is a safe space for you to vent about the emotions you are going through.  Speaking to a therapist or joining a support group will allow you to be in an environment that is judgment-free and will help make you feel less lonely as others are also going through the same circumstances.
  4. Focus On Self-Care & Rediscover What Makes You Happy: This is also a great time for you to focus on your own self-care.  This can include you figuring out what makes you happy and learning who you are as a single adult.  There are many avenues of self-care to consider including exercise, nutrition, hobbies and passions and reconnecting again with family and friends that you may have not had time for previously.  This is also the time to rediscover what makes you happy and what you want out of your life going forward. How do you want your future to look like? What active steps can you put into place in order to reach your goals?

It is important to note that as you move on with your life post-divorce, the time it takes to heal and get settled into your new normal may vary from individual to individual. During this healing process, be kind to yourself and allow yourself the time and space to move forward on your own schedule. No one can tell you how to heal or how long it will take to heal and move on.  As long as you are taking active steps to dust yourself off and move on, even if it is baby steps, you are doing the best you can!

5 Important Things to Do Before You File for Divorce

When a couple decides to divorce, it is usually never a spontaneous decision but rather a long evolving process that has culminated to this point over a period of time. It is important that during this process, you are prepared should you and your spouse decide to file for divorce.  There are many things you can do to prepare for divorce and in this article, we will provide you with some useful tips on what to consider ahead of a divorce:

  1. Thoughtfully Consider Whether Divorce Is Right For You: Before you jump into a decision to divorce, it is important that you thoughtfully consider whether divorce is the right option for you. Many couples for example, choose separation over divorce especially if there are health insurance or religious reasons to consider.  Divorce is a life-changing decision and it should not be made spontaneously but considered over a period of time after you have had an opportunity to consider what divorce would mean for you and your children.  During this time, you may want to speak to a therapist or even try couples counseling in an attempt to either solidify your decision to divorce or reconsider divorce.
  2. Have Thorough Discussions With Your Spouse (and Children) and Your Solicitor: Before you divorce, you may want to have a series of discussions with your spouse about whether divorce is the right decision for you as a couple and for the family.  In your discussions, you may want to discuss whether divorce is the right option for you as a couple and if you do divorce, how would that look.  For example, in your discussions with your spouse, you could talk about how you want to divide finances or how to split care and control of the children.  Generally speaking, if you have mature and reasoned discussions with your spouse prior to the filing of a divorce Petition, there is more possibility that your divorce will not be litigious since you and your spouse have discussed the divorce beforehand. If you surprise your spouse with divorce papers, there may be shock and feelings of betrayal involved which may not bode well going forward in the divorce. Additionally, you may want to schedule an initial meeting with a solicitor to discuss divorce and what it would mean for you to file for divorce and discuss your legal rights and any concerns/questions you may have related to a divorce.  The solicitor will be able to guide you as to the timing of your divorce petition and the things to consider when filing for your divorce petition. This initial information-gathering meeting is important so that you are prepared for what’s to come.
  3. Gather All Necessary Information/Documents For Your Divorce: If you have decided to divorce, you will want to start organizing your life.  For example, this is now the time to gather all the necessary information/documentation related to your finances so that you are aware of your financial health.  You will need to disclose this information to your solicitor who will then prepare all the necessary financial disclosure documents for the Court.  If you do not have this information, it will be harder for your solicitor to prepare the financial disclosure documents that are necessary in your divorce.  It is also not beneficial for you to be in the dark about your finances as you will need to prepare your life post-divorce and this includes being financially independent.  In the event that you are filing a non-molestation order against your spouse, this is also the time to gather all the necessary documents and photos to support your allegations against your spouse.  If you have children, it will be important to collect all the information/documentation related to their daily schedule and any other pertinent information you believe is necessary related to care and control.
  4. Consider Your Wishes For The Divorce Regarding Finances and Children: After you have spoken to your spouse and had the initial information-gathering meeting with your solicitor, this may now be the time for you to consider what you want from the divorce.  How do you want to move forward with the divorce? Do you want to attempt mediation first? Do you and your spouse already have an agreement in place prior to a divorce? Have you reviewed your finances to consider how much maintenance (if you are entitled to it) you will need to pay for your day-to-day needs and the needs of the children? How much time do you want with the children and/or how much time will you agree to your spouse having with the children? These are a few of the important questions to ponder upon and discuss with your solicitor.
  5. Make Necessary Plans For Your Life Post-Divorce: Another aspect you should thoughtfully consider is how you want your life to look post-divorce.  Do you plan to remain living in Hong Kong or do you want to relocate to another city/country? Will you propose to take the children with you? How much money will you need to sustain your lifestyle each month? Will you need to work or switch jobs? This is your time to brainstorm how you want to plan your life once you are divorced and to start making all the necessary plans to reach those goals.  Your solicitor can assist you with this process and provide you with guidance on how you can reach your goals. You may also consider retaining a financial planner to help you with your finances and budget accordingly.

With all the tips above, the key component is open communication with both your spouse and solicitor and also knowing what you want both in a divorce and thereafter.  Whilst it may be difficult, divorce should be viewed almost like a business transaction as you and your spouse are each now negotiating the best deal for oneself.  It may be easy for emotions to get involved, but the less emotion involved, the easier the process will be.  Speak to your solicitor who can help you through this challenging journey.

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