Category Archives: Resolution

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.

Round-Up of Divorce News

Here is a round-up of Divorce news circulating the news across the world wide web!

Mobile Phone Addiction

In an article published by The South China Morning Post, some marriage counsellors in China are claiming that mobile phone addiction is responsible for up to 30% of failed marriages in China. The reason behind these claims is that couples are spending more time on their mobile devices which should instead be used to communicate with their partners, perform household duties or educate children. This causes conflict in marriages and which ultimately leads to divorce. The neglect a partner may feel due to the other partner’s attention to their mobile phone made some partners in China feel as if their partner did not care for them, their home or their children.

The Zodiac Sign Most Likely To Divorce

According to an article released by BestLife, the top three (3) astrological signs to split with their partners are as follows:
1. Aquarius: Due to its free-spirited nature, an Aquarius hates to be tied down and is the least likely to get hitched in the first place.
2. Sagittarius: Sagittarians love to view life as one big adventure and are in a constant state of wanderlust making it hard for them to stay settled in one spot.
3. Pisces: The most romantic, Pisces can become bitter and distant when they feel their partner is not providing them with unconditional love and support.

Kim Kardashian Is Legally Divorced

Kim Kardashian is now officially single after being granted a divorce from Kanye West. As part of her divorce, the celebrity also dropped “West” from her last name.
Kim Kardashian’s divorce is “bifurcated” meaning that whilst her marital status and legal name have been resolved, the other issues related to divorce, namely custody and finances have yet to be resolved between herself and her former spouse.

Newlywed Divorces After Being Blocked on WhatsApp

A Saudi national filed for divorce in Jeddah and in his Petition for Divorce stated that he wanted to part ways with his wife after she blocked him on WhatsApp. The Court issued a verdict in favour of the newlywed husband and the woman was ordered to return the dowry and gold given to her at the time of marriage.

Divorcing Couples Fight Over Crypto

The New York Times reported that divorcing couples are fighting over children, the house and now Crytpo. According to those in legal circles in the USA, marital disputes over Bitcoin is becoming increasingly common and it is now a major source of contention with estranged couples trading accusations of deception and financial mismanagement.

According to divorce lawyers, spouses underreport their holdings or try to hide funds in online wallets and this can be difficult to get to. As a result, forensic investigators are called in to assist but they can charge tens of thousands of dollars to track the movement of cryptocurrencies.

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.

Managing Emotions During The Divorce Process

Anger, sadness, guilt, anxiety, grief and loss are just some of the various emotions that you may be experiencing as a result of your divorce. Due to this vortex of emotions, it is not uncommon for you to act in an uncharacteristic manner.

Acknowledging and being aware of your feelings during the divorce process is the first step in managing your emotions. It is the management of your emotions that will help you overcome some of the more difficult aspects of your divorce, in addition to building a foundation of peace and harmony with your former spouse as many of you will need to co-parent throughout your lifetime.

While many challenging issues must be addressed with the assistance of solicitors and the Family Law courts, many issues couples face can be resolved without the assistance of professionals and should be considered before calling professionals for help. It should be noted that calling your solicitor every time you experience a stressful event is extremely costly and does not lay a foundation for problem solving once the divorce is complete. That is why it is important for individuals to think creatively and with an open mind about how to resolve issues on their own so that your well-earned money can be used for a useful purpose rather than towards solicitor fees and costs.

Here are some practical applications on how to manage emotions during the divorce process in hopes that it will ease the long and difficult divorce process.

Flexible Thinking: Flexible thinking means that you do not automatically reject what your former spouse may say when new ideas are discussed or decisions need to be made. This includes having the ability to think outside of the box and coming up with alternative proposals for problem solving rather than just fighting for your first and only idea.
Check Yourself: It is always important to check yourself and your reactions to your spouse. Are you saying no because you are angry and upset over what your spouse did to you in the relationship? Are you saying no to spite your spouse? Or are you making decisions based on the situation at hand and what is best for you and your family going forward? Ask these questions before you respond to your spouse. When you make decisions that are born out of a rational and calm thought-process, you may find that you are making better decisions.
Focus on the Big Picture: Look at the big picture and write your goals down on paper so that you can keep track of what you are hoping to accomplish at the end of your divorce and beyond. For example, if your goal is to be cost conscious, you may be inclined to take steps to reduce solicitor fees such as mediation versus litigation. Mediation will require you to be more willing to compromise rather than leave all decisions up to the Family Court. If your goal is to make the divorce a peaceful and as seamless as possible transition for your children, you may think differently about how you react and respond to your spouse in front of your children.

With all of this being said, divorce is a difficult and long process, similar to a marathon. It is important to allow yourself to indulge in the emotions you are feeling during the process. Be sure to contact trusted family and friends and seek professional assistance from psychological experts if you need a safe place to process through your emotions. Do your best however to keep your emotions out of the divorce process because divorce is essentially a legal business transaction.

What To Expect At A Divorce Trial

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