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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.

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.
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.
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.
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.

Spotlight Profile – Vicky Lau, Mediator

In this spotlight profile, we are speaking to Vicky Lau, Mediator.

Vicky Lau is an experienced social work practitioner in Hong Kong. She is driven to pursue dignity living for low-income groups which stems from her passion for assisting these individuals with their finances and housing related issues. Vicky has been working in the community development field for 13 years and maintains a keen interest in advocating long term policy changes.

Vicky is now responsible for several housing projects planning and co-ordination.

Vicky, thank you for taking the time to speak with us today.

Can you tell us a little bit about your background and training?

My work has centered around social work and family mediation. I have worked as a social worker for the last 13 years. One of the key areas which I focus on is community development, namely with housing projects in Hong Kong and the low-income group of individuals living in squatter areas such as subdivided flats, transitional housing and other public housing.

When we work on cases with this group of individuals, we engage with them and help them through any struggles they may have especially related to family issues such as divorce. It is during these moments that I will use my family mediation experience and skills to help them with conflict management.

Let’s first dive into your work as an accredited family mediator. What type of family mediation are you typically involved in?

Most of the cases I assist individuals with is divorce. The major issues they have is that they are not privy to information and/or resources. Individuals, particular in the low-income group do not know where to start and they ask for help on how to engage in the divorce process. I assist by providing them with resources and helping them apply for legal aid.

Part of the assistance I can also provide is helping these family members engage in mediation and to speak to them about their issues and see if we can do anything to resolve the issues at hand.

What are some of the central themes/issues that you are seeing in couples in Hong Kong?

Most of the clients I deal with argue about finances as they are from the low-income sector. As living expenses continue to rise and especially individuals with children, their income is not sufficient to cover their daily living costs. Arguments begin due to the stresses related to finances and maintaining a living. The low-income group sector generally do not have the funds to hire domestic helpers and in most cases, the mother takes on the primary role of being a full-time housewife while the father is the sole breadwinner. Due to the imbalance of economic positions, these couples will argue over daily chores, finances and with such a small space, they do not have room to take breaks from one another. The only option for breaks is to go outside or out to the street. The stress upon these individuals is very high.

What practical exercises/advice do you give to couples going through marriage difficulties?

First off, I will assist these individuals to apply for resources. For example, there are subsidies available from the government which are difficult to apply for but once approved, the money is good for these families. I like to help these families apply for such grants because it provides the families with some relief from the financial situation. For those individuals going through a divorce, I can assist them with filing for divorce and providing resources to file for divorce including applying for legal aid.

When I am working with these families, I like to teach them micro-skills to help ease any conflict they may have especially in such small spaces. For example, simple methods of creating space and boundaries are important. One of the main skills I like to provide advice on is communication skills. For example, I like to talk to families about how to rephrase their thoughts so that they can get the same point across but with a different tone.

What about children…what practical exercise/advice do you give to children who are going through the same difficulties?

It depends on the age of the children, but I always like to offer my social work and mediation experience to children depending on whether they are willing to accept it.

One of the main issues I see with children is tackling the emotional aspect of divorce. When parents get divorced in the Chinese traditional culture, the children will know that the parents have a bad relationship but they do not necessarily have any concept of divorce or the process of one parent moving out. Many times, the traditional Chinese families do not talk about divorce to the children and sometimes will lie about what is actually happening. I always like to tell parents that it is vitally important that they tell the children about the divorce and remain transparent about it because in reality, children already know that something is wrong. Even if they cannot express in words what they are seeing, they can feel it. Children also see the conflict happening in the household so it is important for parents to talk about it with the children so they are not left in the dark about what is going to happen. I always like to remind parents that it is important to speak with the children about the divorce (but not adult-related matters) and relieve what the child is worried about. Many times, divorce will impact a child’s future long-term romantic relationships and if it is not dealt with properly as a child, they will have trust issues in their adult relationships or create the same relationship pattern as their parents in their adult relationships. The ideal is for a child to have a future romantic relationship where it is peace and solution-based focused rather than a conflict approach basis.

About Vicky Lau, Mediator

Vicky was educated at the Hong Kong Baptist University with a Bachelor’s in Social Work and a Master’s degree of Arts in Communication (Concentration: Integrated Communication Management). Also, Vicky has been an accredited mediator since 2010 and attained accredited family mediator status in 2018.

Vicky is currently working at a local NGO and received the 2019 Best Practice Award in Social Welfare issued by The Hong Kong Council of Social Service (HKCSS) for a public housing project.

If you would like to get in touch with Vicky, you can contact her at the following email address –
vickylau.mail@gmail.com

Spotlight Profile – Dr. Bryan Ho, Psychologist

In this spotlight profile, we are speaking to Dr. Bryan Ho, a Chartered Psychologist. Dr. Ho was formally trained in Hong Kong and California, USA and received specialization degrees in Clinical Psychology and Trauma Psychology in Hong Kong and US. Dr. Ho’s practice is based in Hong Kong but he has psychologist qualifications both in the United Kingdom and Hong Kong.

In addition to his clinical practice, Dr. Ho has extensive experience in the areas of mental health. Dr. Ho has been a teaching faculty of psychiatric nursing at The Hong Kong Polytechnic University since 2012 and is now the Deputy Program Leader of the Bachelor of Mental Health Nursing at The Hong Kong Polytechnic University.

Dr. Ho, thank you for taking the time to speak with us today.

Can you tell us a little bit about your background and training?

The reason I started my career in nursing as an undergraduate degree was due to a family issue. Nursing allowed me to lead a good quality of life at that time as it was during the 1997 financial Tsunami that Hong Kong had faced and it was revealed that there was need for nurses in the workforce.

After I graduated, I worked as a nurse for many years but then decided to pursue a second career in psychology as I had always had such a strong interest in psychology since I was very young. Psychology is an interesting line of work because it allows you to study the mind of a person and to understand.

You received a specialization training in Trauma Psychology. Can you tell us more about this and how it has expanded into your practice in Hong Kong?

Scientific research provides a clear explanation on how trauma psychology helps in healing a person who experiences trauma and loss. For example, Eye Movement Desensitization and Reprocessing (EDMR) therapy is a form of evidence based intervention specifically developed for reducing the power of traumatic memories.

When it comes to my professional practice, I will tailor approaches differently depending on my patient’s physical and mental condition and will find ways that could maximize the benefits towards them.

I undergo a comprehensive clinical interview with the client and get him/her to reacquaint themselves with the trauma and may revisit it to help the patient understand the trauma. This could help to alleviate their stress.

Despite from my training in cognitive therapy and psychodynamic therapy, I also enjoy helping my client from the perspective of bio-psychology. For example, taking a deep breath. An autonomic nervous system helps to regulate certain body processes, including rate of breathing and heart rate as such, this could help to relieve the problem and your mental health through regulating your emotions effectively.

If you are experiencing a complicated relationship or have broken up with your partner, stay in the “here and now” and talk to someone, whether it be a friend or a professional and before it gets worse.

Many individuals go through divorce and unfortunately, for some, this could be considered a life trauma as many describe divorce as going through a family death. How do you counsel those struggling with issues related to divorce?

I will try to engage in conversation and develop a therapeutic relationship with the clients, and of course to develop trust. This first allows me to understand the situation and to facilitate the process of therapeutic changes.

In case an individual is having a hard time during the divorce process, and they are desperately in need of some resources to support themselves, I would highly recommend them to seek assistance from a professional. These professional helpers include but are not limited to psychologists, psychiatrists, counselors, social workers, psychiatric nurses, and pastors (with relevant training). In the event that they are less comfortable in speaking to a professional and prefer to do some online research, I would suggest that they only look for those reliable resources prepared by reputable institutions, such as The National Health Service, The Family Planning Association of Hong Kong or materials from educational institutions.

An important area of discord between parents is how to raise the children and co-parent after a divorce. What key issues do you see between parents during such struggles?

Divorcing parents can be irrational because of the emotions wrapped up in a divorce. It is wrong to use children as a weapon in divorce or separation and it is important for parents to understand that this harms the child in immense ways.

Children can sense a parent’s emotions and detect tension in the people who care for them, even as young as toddlers. If a parent cannot control their emotions and it erupts into an argument in front of a child, it is suggested to take a deep breath and calm down yourself, before carrying on the discussion. We should have the ability to manage our emotions, but we just forget to use these abilities temporarily. This means that we are able to undergo a discussion in a peaceful manner when we resume our control over our emotions.

What advice do you have for parents who are trying to co-parent amidst a divorce? What do you recommend for parents so that they can successfully navigate healthy parenting post-divorce?

Parents must try to understand each other’s limitation and strengths. They should also be rational and avoid using their children as weapons in a divorce. And parents should also remember that it’s okay to reach out to professionals when in need and that includes mediators, psychologists, psychiatrists, social workers, psychiatric nurses, counselors, and religious professionals.

About Dr. Bryan Ho, Chartered Psychologist:

Dr. Ho is a Chartered Psychologist and focuses on health care.

Dr. Ho received an undergraduate degree in psychiatric nursing from The Hong Kong Polytechnic University and received postgraduate degrees in Trauma Psychology and Clinical Psychology in Hong Kong and US.

Apart from his role as a chartered psychologist, Dr. Ho has extensive experience in teaching psychiatric nursing at The Hong Kong Polytechnic University since 2012. Dr. Ho is now the Deputy Program Leader of the Bachelors of Mental Health Nursing at The Hong Kong Polytechnic University.

The Fight for the Family Home in Divorce

A major bone of contention among divorcing couples is the division of the family home. This is understandable given that couples invest considerable time, effort and money in creating a dwelling place and for the majority of couples, the family home is a major asset that a couple acquires during the marriage. Having a roof over your head and over the heads of children is of paramount importance to a court when making decisions related to the matrimonial home. It is for this reason that individuals must have a realistic view of what can happen to this asset during a divorce. One potential change may be the loss of the family home. A party to a divorce may be required to “downgrade” to a smaller place or may even be required to rent instead of own a home, which for some is a difficult change of circumstances.

So, with this in mind, what happens to a family home in a divorce and what options are available? Here are a few things to consider when discussing the family home in a divorce:

Sell the Family Home:

One option that divorcing couples opt for is to sell the family home. Proceeds from the sale of the home are then split accordingly between you and your ex-spouse, the split percentage being agreed upon by you and your ex-spouse or by court order. Prior to the agreement or order for the sale of the family home, you and your ex-spouse may be required to hire an expert valuer to value the property in question, especially in circumstances where you and your ex-spouse cannot agree to the listing price or the percentage split of the sales proceeds of the home.

In Hong Kong, the Family Court has the authority to issue what is called a “Mesher order” which basically is an order to sell the family home but at a postponed time until a named event occurs, such as when a minor child graduates from high school or university. The Family Court will look at the facts surrounding the family before making any such orders but the goal in postponing a sale is to consider the accommodation of one spouse and the children.

Another power of the Family Court is to issue what is called a “Martin order.” This is similar to a Mesher Order, except that under a Martin Order, one party is given an entitlement to occupy the family home for life or until remarriage.

In certain situations, if a transfer of property results in one party having a larger share of the matrimonial pool, the individual who receives the greater share may be required to compensate the other party a lump sum of the gain or the receiving party can hold a legal charge over the property until such time he/she can be later compensated.

It is important to bear in mind that if a Family Court makes an order for the sale of the family home, it can only be ordered after you are divorced (Decree Absolute).

Transfer of Property:

Although not common, the Family Court in Hong Kong also has the ability to order a transfer of the family home to the other spouse or a child of the family.

The Family Court in Hong Kong acknowledges that it is generally desirable for the primary caring parent to remain in the family home, on the basis that the children remain in a home they are used to and close to their school, and the Family Court will do what they can to maintain that status quo. This however does not mean the Family Court will not take into account cheaper accommodation if this means capital can be released from the family home and the family can move into similar and satisfactory accommodation.

One thing to keep in mind in a transfer of property situation, is whether there is a mortgage attached to the property as this could affect a transfer of property. What will become a factor is whether the receiving party can maintain the mortgage from either his/her own resources or from maintenance received by the other party.

Buy-Out:

Another option to consider, if you have the ability and the funds, is to buy-out your ex-spouse’s interest in the family home. If you choose this option, talk to your solicitor and discuss what provisions are necessary in an agreement/order to secure your interest in this property.

Stay in the Home Pending Sale/Transfer:

Some divorcing couples may consider staying in the family home and live together pending the finalization of the divorce. While this might make sense for some families, it could also create an environment of stress and tension, not only for the divorcing couple, but also for the children. Before choosing this option, it is important to have a plan and discuss this with your ex-spouse so boundaries are established and communication tools are in place should conflict occur. Having a plan will eliminate any tension that may occur when living in close quarters.

Tenancies:

In a city like Hong Kong, it is not unusual for couples not to own a home, but instead become renters due to the high housing costs. In a divorce, it is not uncommon for one party to remain in the rental unit until such time the lease has expired, subject of course to whether the parties have the ability to pay the rent.

Adjustments must be made at times and this relates to rental units as well. In certain cases, there may be insufficient income to pay for two rents each month. Such adjustments may include a “downgrade” to a smaller, less expensive rental unit or even adjust the standard of living.

Discuss these options with your ex-spouse, along with your solicitor. Your solicitor can provide you with more detail on what options are best suited for you and your unique circumstances. While it may be uncomfortable and upsetting to divide an important asset such as the family home, this may also be an opportunity to start fresh and create a new home for you and your family.

Spotlight Feature: Interview with Gordon Oldham – Senior Partner of Oldham, Li & Nie Solicitors

We believe it is of utmost importance to provide you with as much useful information as possible to assist you through the divorce process in Hong Kong. This includes information on the matrimonial experts in Hong Kong and the services they provide to support you through your divorce.

It is for this reason we are starting a new feature series called Spotlight Feature. In Spotlight Feature, we will be interviewing key individuals and law firms with experience and expert knowledge in matrimonial law in Hong Kong. We hope these feature articles will provide you with useful information and excellent resources for your divorce journey.

In our first Spotlight Feature, we focus on Oldham, Li and Nie (“OLN”), a well-known Hong Kong law firm established in 1987 by Founder Gordon Oldham. The firm is located in St. George’s Building in Hong Kong’s central business district and has a team of nearly 40 lawyers.

OLN services range from corporate and commercial law, to employment and intellectual property law. OLN also has a highly regarded divorce and family law practice headed by Partner Stephen Peaker. Stephen’s team focuses on matrimonial disputes, children issues, ancillary relief and pre and post-nuptial agreements.

To discuss the firm’s matrimonial practice, we met with Gordon Oldham the Senior Partner and Founder of OLN, who besides having a heavy commercial practice also deals extensively on matrimonial matters, especially on their financial aspects.

Q: Mr. Oldham, thank you for taking the time to speak with hongkongdivorce.com. Can you tell me more about yourself and your background?

A: I am British and have been practicing law in Hong Kong for 40 years. I was originally with a larger firm but subsequently established OLN in 1987. In the past 30 years OLN has carved out a space in litigation practice which of course includes matrimonial law. It also has its focus on commercial aspects which of course for people living in Hong Kong is a very real consideration. Regretfully the main focus of divorce proceedings is on the financial and commercial aspects. We have created what I believe is rather unique in Hong Kong i.e. a business department where we have a number of qualified accountants and lawyers, who have showed themselves invaluable when considering the parties’ finances and unlocking value and location of assets. Regretfully most lawyers still have trouble reading a balance sheet and a lot of this forensic work in the past has been farmed out (at great expense to clients) to outside accountants). We believe in keeping it in-house and developing expertise within our own team.

Q: You have such a unique set of skills and expertise which you bring to your firm. So let’s talk about OLN. Why do you think your firm is considered to be one of the leading matrimonial law firms in Hong Kong?

A: As I mentioned above, we do have a unique set of skills in so far as the commercial aspects are concerned. We would like to think that no other matrimonial team possesses such in-house expertise. The matrimonial department is headed by Partner Stephen Peaker who has been practicing matrimonial law for almost 30 years. Stephen has a great deal of experience in cross-border matrimonial issues which is of course very often the case in Hong Kong since there are so many expatriates. The first question is always – do I divorce here in Hong Kong or in my own country? Stephen is also a member of the Fellow of the International Academy of Family Lawyers which means that the matrimonial department works with family law experts across the world and has developed a strong reputation in such regard. I believe it is our work ethic and our values. We also believe that life is complicated enough when it comes to divorce with the emotional baggage, stress and worry that this brings, the last thing that a wife or husband needs is a pedantic academic lawyer with little or no empathy, who regards the matter as just another case. This attitude is endemic in Hong Kong especially with lawyers who have been doing it all their life, and so acknowledging and working on this empathy and relating to the parties is all important. Lawyers need to be strong for their clients but they also need to be aware of the human side.

OLN’s matrimonial team is uniquely dedicated to each and every client. Each case is tailored to an individual’s unique circumstances and each member of our team is sensitive to the struggles each client is going through yet also understanding the need to be aggressive when necessary to achieve the desired result for our clients.

Q: What do you think makes OLN stand out from the other matrimonial law firms in Hong Kong?

A: The matrimonial team spirit is in line with OLN’s vision and dedication to service which for us means, on time and no excuses. This means that our matrimonial team is dedicated to an individual’s case as if it were the only one at our firm. This is especially important in matrimonial law because the clients are individuals going through a very difficult and challenging time and these individuals need attention and assistance in walking through each step of the divorce process. The individual care and concern our partners and associates have for their clients is what makes us stand out, not to mention the expertise and experience our partners and associates bring to each and every case.

Q: What advice would you give to an individual going through a divorce in Hong Kong?

A: First and foremost, don’t panic. The whole divorce process can be rather challenging so keep your lawyer informed of everything throughout the divorce process so they are not caught by surprise. There are no dumb questions so don’t be afraid to ask these questions of your lawyer and get precise and clear answers. Always know what this is going to cost. Too many lawyers are happy to just roll on working for a wife or a husband and then at the end present a big whopping bill. Others when acting for the wife sometimes suggest that – it doesn’t matter; your husband is paying for this. The problem is that all of these legal costs come out of the matrimonial pot, so keep costs at the forefront of your mind at all times and do not be shy about it.

Don’t forget that the whole process is rather daunting and calls for staying power because there will be times when you just want to give up and get it over with. That is only human and this is the time when you need to lean on your lawyer. I used to do a lot of marathons and the divorce process is more or less the same, it will be tiring but more importantly it will come to an end. Moving house, a death in the family and divorce are certainly some of the more emotional experiences but thankfully they come and occur very rarely so find a lawyer whose hand you can hold and rely on to get the job done.

Q: What are the common difficulties your clients have faced in the past in divorce proceedings?

A: As I have said a divorce is emotionally draining but I have to say it is more or less like a commercial transaction. By that I mean that it’s a step by step process of separating finances and figuring out new arrangements with respect to children, access, financial support and other key issues in a divorce . As we know, all decisions are based on emotion. It is only afterwards that we find some other justification for our actions. Humans are great at finding reasons for any of their decisions! We will never separate these emotions, but what we can do is get to a place where we treat the whole process as a job and focus on the individual steps that need to be taken to resolve issues without too much scarring on the heart or long-term emotional damage.

Well it is often the case that wives have absolutely no idea about the financial background to the marriage and have no idea as to what can be expected in the future. I believe that is where OLN lead because of our ability to rationally assess the financial picture and make recommendations which are economically justifiable.

Q: What is the best way for someone interested in your services to get in touch with you?

A: If someone is interested in our services, they can easily call us at +852 2868 0696 and set up an appointment for a consultation with one of the leading matrimonial solicitors from our matrimonial department. Individuals can also stop by our offices. We are located at Suite 503, 5/F, St. George’s Building, 2 Ice House Street, Central, Hong Kong. Enquiries can also be sent to info@oln-law.com and we will point you to the right solicitor for your individual needs.

Q: Thank you again for taking the time out of your busy schedule to speak to us!

A: My pleasure- I love what you are doing-bringing the law to us all and getting rid of the mystery!

Modifying Financial Agreements/Orders Post-Divorce

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