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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4534
Experience:  Dip Law LPAB - Sydney based lawyer
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I am trying to get acceptance of my counter offer to my wife

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I am trying to get acceptance of my counter offer to my wife in a property settlement.
My Solicitor agreed & encouraged me to negotiate direct if at all possible, which I am attempting to do
If I were to now cancel ( temporarily at least) my Solicitor, how vulnerable would I be, & what action could my Wife's Solicitor choose to take against me?

We are in Queensland.
Submitted: 11 months ago.
Category: Australia Law
Expert:  Patrick H. replied 11 months ago.
terminating your lawyers appointment is likely unnecessary since he should only be charging you for work he is actually doing, so is all you need to do is proceed without him to the extent you can, but keep him him available in case you do need his advice on anything as it comes up.

Acting without a lawyer in negotiations primarily poses the risk that you may not be in as good a position as the other lawyer in considering whether any particular proposed settlement is reasonable in the context of what you would likely recover in court. A good lawyer can exploit that advantage to achieve a more favourable offer, provided you do not commit to anything prior to consulting with your lawyer, this should not be a major issue.

Another risk is just that lawyers tend to be experienced negotiators and generally experienced negotiators get better outcomes than inexperienced negotiators. Not everyone agrees that this really makes a difference, but in my experience it does.

Finally, if you sack your lawyer or leave him out of the direct negotiations, you may create the impression you are unwilling to incur legal costs and are likely unwilling to fight this matter in court, which may convince them that your position is weak and therefore lead them to be more demanding in negotiations. It is a harsh reality of legal settlements that trying to save legal costs at the outset may actually cost you more in the long run because it encourage the other side to run the matter to a hearing because they suspect you are afraid to incur the expense and may capitulate if pressured.

The above all factors, which in my experience can be real issues, mean that I must recommend you should keep your lawyer involved in negotiations throughout even if only in a fairly passive role.

I trust the above assists.

Please rate my answer so I can be paid by the website operator.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick
Customer: replied 11 months ago.
Thank you. It wasn't so much to save money that I contemplated cancelling my Solicitor at this point, but more to get my wife to take my offer very seriously.
So what action might her Solicitor then take? Can he force me to respond further? Can he force me to a hearing?
Expert:  replied 11 months ago.
The lawyer cannot make you respond to an offer, but if you cannot reach a settlement then the usual result will be to let the court decide and so yes, the lawyer will take it to a hearing.

Generally speaking parties should always seek a negotiated settlement unless they think they can do better in court. If one side doesn't have proper legal advice they may not be aware whether they can do better, and this will impair their ability to negotiate effectively.

Keep in mind that if a party receives a formal offer in accordance with the court rules, and the matter ends up in court and they fail to do better than the offer which they ignored or rejected, then the court may well order them to pay the other party's costs. This is another reason why you should involve your lawyer in considering or making any offers of settlement. By making formal offers with cost implications you can put significant pressure on the other side to take your offer seriously. Unrepresented litigants can rarely apply the same pressure and I would usually only recommend that a client deal directly with the other side (never the other lawyer, but the other party to the proceedings) if I thought the parties were more likely to see sense by such direct communication, or if I thought the other parties lawyer was perhaps obstructing a settlement (Which sometimes happens).

I trust the above assists.

Please rate my answer so I can be paid by the website operator.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4534
Experience: Dip Law LPAB - Sydney based lawyer
Patrick H. and other Australia Law Specialists are ready to help you
Customer: replied 11 months ago.
Hi again. I am heeding your advice. I have made a counter eoffer direct. My wife has chosen not to accept it & replied via the Lawyers who favour a WP Conference with them involved I have replied direct again - asking that my offer be reconsidered & stating we should come to agreement ourselves even if it takes longer. I am concerned I will be railroaded with their influence. I believe they will expand it unnecessarily etc.
On a side issue, there is a matrimonial asset ( land & commercial building) - estimated value now $340k. - That I paid $100k for but put it in my Wife's name. I understand She is entitled to half (120k) of the increase in value (240k) .
Should I consider putting a caveat or similar on this asset if there is a opportunity for her to sell it & retain all the proceeds whilst we are negotiating the settlement?
Expert:  Patrick H. replied 11 months ago.
I can see no reason you should refuse to have conference with them to negotiate further, and if you fear you may be bullied or intimidated into accepting a settlement you will be unhappy with then you should take your lawyer with you and just go in ready to reject any offer until you have slept on the issue. Whilst they can press you to accept an offer on the day, they cannot force you to.

As to the side issue, it is generally not appropriate to be trying to place a caveat over assets unless you have an actual specific legal interest, either because you are an owner, leasholder, or it you are a creditor whose interests are secured by the asset. The mere fact that the owner of an asset arguably owes you money or share of their assets does not entitle you to lodge a caveat and doing so would put you at risk of being sued.

Also, under family law principles you are not entitled to a 50% interest (there is no presumption of 50% interest in family law despite the common misapprehension), rather you are entitled to a 'fair' share of the total asset pool having regard to your and your spouses' financial and non financial contributions and any special factors. Your entitlement pertains to an overall share of the total assets, not of specific assets.

In regard to this additional asset, if it is in your wife's name then on the face of it she is free to sell it and provided either the asset itself, or the money raised by its sale, are counted in the asset pool to be divided in your settlement, it doesn't really matter.

I trust the above assists.

Please rate my answer so I can be paid by the website operator.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick
Customer: replied 11 months ago.
Thank you.
I hadn't thought of attending a conference without my Lawyer but that may well be the better option. Then reporting to him for advice later.

On the other hand, if I continue attempting to come to agreement direct, can I be forced to a conference or hearing within a time frame?
Expert:  replied 11 months ago.
Trying to negotiate an agreement does not generally prevent court proceedings from progressing to a hearing, but provided both parties are still interested in a settlement it may be that the parties can agree to jointly ask for an adjournment of the proceedings for a period to allow negotiations to proceed. If one side or the other is no longer interested in negotiating, or sees no benefit, then of course they can continue to press the matter toward a hearing.

A conference is really just a more formal way to negotiate in a face to face manner, and again the parties cannot force each other to a conference, although the court will in many instances order or require the parties to attempt a formal conference or mediation in order to attempt to negotiate a settlement before the court will consider deciding the matter itself.

I would generally advises you to take your lawyer to any conference or face to face negotiation as they can help you deal with any negotiation ploys the other side may make, and perhaps assist you in achieving a better settlement outcome. This is especially true if your wife will be bringing her lawyer.

I trust the above assists.

Please rate my answer so I can be paid by the website operator.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4534
Experience: Dip Law LPAB - Sydney based lawyer
Patrick H. and other Australia Law Specialists are ready to help you
Customer: replied 11 months ago.
Hi again.
A friend has strongly advised that I should instigate proceedings to Divorce - prior to the property settlement as he instanced a family member ( in Victoria ) settled & then had to settle a second time later after the divorce.
If this is wise, preferable without negatives, how should I go about it?
My Lawyer is on leave right now. We are in Qld.
Expert:  Patrick H. replied 11 months ago.
In an ideal world it would be neater to divorce before concluding your divorce proceedings, but in practice it should rarely make a difference, as a binding agreement can be reached even prior to divorce, and it is only in certain circumstances that such an agreement will cease to be effective so as to require significant further negotiation (such as where the parties financial circumstances changed very significantly before the divorce was finalised, or if a child of the relationship were born without having been considered in the agreement).

Indeed, the most common reasons a second settlement will occur is if the first is not compliant with the Family Law Act rules on binding agreements. This usually happens when parties negotiate a settlement informally between themselves without using lawyers. This is because the Act specifically provides that agreements are not legally binding unless both parties have received independent legal advice. This reason for a second settlement would still be true regardless of whether the settlements were reached before or after the divorce.

For this reason it is not uncommon for couples to informally settle after they divorce.

So whilst I obviously don't know the facts behind your friend's advice, such concerns are not a reason to cease formal negotiations.

I trust the above assists.

Please rate my answer so I can be paid by the website operator.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick
Customer: replied 11 months ago.
I am slightly confused. Your last line suggests that I intended ceasing negotiations. I had no intention of doing this. I am trying to come to general agreement & then to finalise it with our Lawyers.
Are you saying to do this prior to starting divorce proceedings?
Expert:  replied 11 months ago.
If you are already in negotiations I'm just saying the timing of the divorce is not a reason not to continue negotiations and if you can reach a settlement before you divorce that should be fine.

I took it from your previous post and the concerns of your friend that you did not want to reach a settlement until after you were divorced, and assumed you therefore were intending to delay negotiations until that time. Sorry if that caused you confusion.

Please rate my answer so I can be paid by the website operator.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick

Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4534
Experience: Dip Law LPAB - Sydney based lawyer
Patrick H. and other Australia Law Specialists are ready to help you

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