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Admitted Attorney of the High Court of South Africa.
B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)
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High Noon for Devious Parents as Judges Place Children First

Maintenance evaders beware – the litigant with the best typewriter doesn’t always win.

Rule 43. Maintenance evaders beware. The litigant with the best typewriter doesn't always win.

Last week a three-judge bench of the Johannesburg High Court pronounced on the level of disclosure required by those appearing in a maintenance court. Both parties must now make full financial disclosure: every detail, including trusts and offshore assets, as well an explanation if a spouse enjoys a particularly luxurious lifestyle.

A judge can now call for an explanation if one spouse pleads poverty yet appears to live the life of Riley.

While the judgment pertained to Rule 43 (pre-divorce) maintenance actions in the high court, the decisions of the high court are binding on those magistrate’s courts that deal with divorce or maintenance.

What is Rule 43?

Rule 43 is similar to Rule 58 of the magistrate’s court. It sets out the procedure to be adopted by spouses seeking maintenance prior to a high court divorce and when maintenance is sought in the latter court.

It is more often than not the only court hearing the spouses will have before reaching a settlement of the financial aspects of the divorce. This why the judgment is so important.

Why was a full bench decision necessary?

Three divergent decisions on maintenance by high courts in Gauteng caused uncertainty.

While not a referred matter, the judgments of TS vs TS and SC vs SC handed down by Johannesburg Judge Brian Spilg appeared to take centre stage in the full bench proceedings.

Judge Spilg’s approach in TS vs TS was multi-pronged; in it he stated that:

  • Without proper financial disclosure, the court has little to work on in cases involving child support other than the product of competing typewriters.
  • If an applicant were unable to reply to the respondent’s contentions an unfair trial might result, something which goes against the spirit and letter of the Constitution.
  • If the one party is alleged to be concealing assets or an income stream then a lifestyle questionnaire or a brief hearing covering the lifestyle of the parties would assist in reaching an informed decision, as opposed to doing the best one can with the paucity of detail provided on untested affidavit evidence.

Self-employed deadbeat parents 

In SC vs SC the respondent had his own business. Judge Splig carefully analysed what both the applicant and respondent put before court (pointing to lifestyle) and observed the following:

  • It is obvious that the underlying source of each party’s income is the starting point of any investigation. The underlying source is not necessarily, nor even predominantly, an amount deposited into a bank account at the end of each month. It can be other forms of benefits that have an economic value, such as the right to occupy a residential property indefinitely, the use of a motor vehicle or credit card facilities.
  • The mere fact that a party claims to earn a salary and produces a pay slip or even an IRP5 form [employee tax certificate] tells a court very little unless it is self-evident that he or she is strictly a wage earner with no personal connection to the employer. By way of example; salary can be converted in the books and retained as a loan account or converted into equity or an investment. The use of assets registered in the name of a legal entity or a trust, such as a residential home or motor vehicle can be used indefinitely for the de facto sole benefit of a party and recurring purchases or expenditure such as groceries, petrol, vehicle maintenance, clothing, entertainment and even utility bills can be put through the company, while school fees can be taken out of a trust which provides for such an expenditure.

Judicial admonition

Judge Splig admonished presiding officers to be astute in such cases and to place proper weight on the external manifestations of the parties’ disposable income by reference to the lifestyle enjoyed by them when they lived together, whether they lived debt-free and were able to access ready sources of funds as and when needed unless proof is provided that the individual breadwinner or both lived beyond their means by reference to overdrafts, genuine loans, or had disposed of a capital asset. In short, these various structures are invariably established not simply to protect individuals from personal liability but serve legitimate tax structuring objectives to defer or convert income.

The conclusion of the full bench: Your lifestyle says it all

The full bench held that lifestyle says it all. Both parties are required to make a full and frank disclosure of their relative financial positions to the court and the other party by way of an affidavit.

These affidavits must also be accompanied by Form E – also under oath – and filed seven days before the hearing. Form E, a 20-page document that each spouse completes, will give a maintenance officer a clear insight into the lifestyle of the parties. A lifestyle investigation will prevent the parties from ducking and diving and is an incisive and long overdue manner of getting to the bottom of what has been a vexing issue in our society for far too long.

Postscript

Last year a feisty self-employed Pretoria mother got hold of TS vs TS and SC vs SC and produced seven lever arch files of financial documents in the Pretoria Maintenance Court. The magistrate too one look at the trolley load and ordered that she produce no more than one lever arch file for the hearing.

The matter is presently being taken on review in the Pretoria High Court on the basis that full disclosure was made, as stipulated by the high court. The magistrate was not obliged to read every financial document – only those referred to by the parties.

The magistrate’s decision to curtail the mother’s constitutional right to a fair hearing is to be reviewed. She has also asked the high court that the magistrate pay the costs of the review application on a punitive scale out of her own pocket so that the taxpayer is not burdened with this expense.

Read the full bench judgment here.

Source: MoneyWeb (emphasis by SDLAW*)

*Simon Dippenaar & Associates, Inc. is a law firm of Cape Town Attorneys, now operating in Gauteng and Durban. Contact one of our specialist divorce lawyers or family attorneys on +27 (0) 86 099 5146 or sdippenaar@sdlaw.coz.a for immediate strategic and compassionate assistance.

Further reading:

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Considering divorce?

Things to consider when considering divorce

If your marriage has broken down irretrievably and you honestly believe you and your spouse would be better off going your separate ways, you have probably reached the stage of considering divorce. But perhaps you are just feeling unhappy, bored, dissatisfied or demotivated. Every relationship goes through difficult times and it’s important to be sure there isn’t something worth saving. Sometimes a bad patch in one’s own life is attributed to the relationship, when a bit of self-reflection and self-care can solve the problem.

Considering Divorce? Divorce lawyer family attorney

Many couples get as far as the divorce attorney’s office and realise they don’t actually want to get divorced after all. Sometimes this happens during mediation; at other times the process of articulating the reason for the divorce to the divorce lawyer results in a re-evaluation of the situation. At Divorce Attorney Cape Town, we are always pleased to see a couple reconciled, but your bank manager might prefer you to do that before arriving at our offices.

When you’re sure you want to divorce

You’ve asked yourself the hard questions, and you are confident that divorce is the best outcome for your situation and for your family. In that case, we’re here to support you. What’s next? And what do you need to think about?

How amicable will the divorce be?

Are you and your spouse in agreement over the need to divorce? Do you have a common view as to how assets should be divided and how your children (if you have them) should be raised? It is possible to go through the divorce process in a civil manner and make mutually acceptable arrangements regarding the big decisions…the house, the children, the savings account. In this case you may succeed in having an uncontested divorce. This is by far the most affordable option. Divorce costs can spiral out of control when the divorce is contested.

What does this mean? Well, an uncontested divorce is just what it sounds like: both partners agree on the division of assets (the marital regime will have an impact on this anyhow) and how any children of the union will be cared for, without contest or conflict. A parenting plan will be drafted as part of your divorce settlement.

By contrast, a contested divorce is one in which these key considerations are disputed. The spouses, who have become warring parties, are at loggerheads and, often out of spite or their own pain, are unable to compromise and find a way forward. The divorce attorney may recommend mediation as a means of arriving at an out-of-court settlement, but, if that fails, the case goes to trial. In these situations, it is unlikely that anyone will emerge unbattered or unbruised. The judge becomes the decision-maker, allocating assets and determining child care and contact, because the spouses are too immersed in their own pain to envisage a more dignified way out of the marriage.

Cape Town divorce lawyer SD Law strongly recommends trying to achieve an uncontested divorce wherever possible. We have seen first-hand the damage contested divorces can wreak. Unless your spouse is a multi-millionaire and you feel you are entitled to your share of their millions, perhaps because you helped them build their career while sacrificing your own ambitions (in which case we will fight tooth and nail for you), an uncontested divorce is always easier to recover and move on from.

Do you need interim maintenance?

In some divorce cases, one partner – usually but not always the woman – is financially disadvantaged by the whole divorce process. Perhaps the relationship has broken down to the extent that you have established separate households before the divorce is finalised. One partner has been responsible for daily care of the children and has foregone earning potential to fulfil this role. But two households cost more than one to sustain. If one partner is struggling financially while waiting for the decree absolute, the South African courts offer a temporary solution in the form of interim maintenance known as Rule 43. A Rule 43 application allows a non-earning spouse to receive interim maintenance when the joint household income has been dissolved. The lower- or non-earning spouse may also receive financial assistance with legal costs, allowing equal access to due process of law. We are family lawyers in Cape Town and can assist with a Rule 43 application.

We will also ensure your final maintenance settlement is fair and equitable and arrangements for child care and contact after divorce are not only in the best interests of the child but workable for both parents as well.

Married abroad?

If you were married overseas, or if you are married to a foreign national who has now left South Africa, our international divorce specialists can help you navigate the slightly more complex waters of foreign divorce. We can also help if you were married in South Africa but are now living abroad and want to divorce through the South African courts. And while we’re on the subject of international divorce, we were delighted to learn that Ireland recently relaxed its strict requirements for divorce, reducing the time couples must live apart before divorce from four out of the five previous years to two out of three. Divorce places families under tremendous emotional strain, and can also have a financial impact. A long, drawn-out process does not encourage reconciliation; it just prolongs the pain. Fortunately, here in South Africa we do not have a similar prerequisite to divorce.

We are divorce lawyers with high EQ

At Cape Town divorce lawyer SDLAW, we will help you reach the best possible divorce settlement for your circumstances. This includes the financial arrangements and the plan for looking after the children. But we do more than that. We understand how stressful divorce is, even if it is mutually agreed and amicable. We will work with you to resolve issues in a sensitive, intuitive way that treats all parties with dignity and respect and accepts that emotions are inevitable. We know that you will need to rebuild your life after the divorce, and that’s most easily done if you haven’t been completely broken by the process.

Our unique approach is valued by our clients and has been featured in All4Women and Fin24. You can read what our clients have to say about us here.

Contact Divorce Attorney Cape Town for more information

Cape Town divorce lawyer SDLAW is an expert in divorce and family law. If you would like to discuss your divorce in confidence, contact Cape Town Divorce Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Additional reading

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Parental Alienation as a Sign of other Disorders

Sometimes parental alienation masks another personality disorder

Parental alienation may be a sign of personality disorders - divorce attorneys and family lawyers

In other posts we have discussed parental alienation, what it is and how it impacts children during and after divorce. We’ve also covered some of the ways a trusting relationship can be re-established, even after damage has been done. The alienation from a parent does not have to be permanent, even if the rebuilding of trust takes time. Parental alienation often happens not because of the malicious actions of one parent but because of a complex set of behaviours that involve both parents and even the extended families. However, in some circumstances the manipulation of the child(ren) is a direct result of a more deep-rooted emotional disorder.

Narcissistic personality disorder

Narcissistic personality disorder (NPD) or the milder trait of narcissism can be at the heart of parental alienation. Narcissists by definition are controlling and self-absorbed. They are insensitive to different views and the needs of others; and wildly oblivious to the effect of their behaviour on others. They often criticise, undermine and even humiliate others, none more than those closest to them. If their nearest and dearest dares to escape the intolerable situation that is life with the narcissist, they will often seek revenge via the children. The narcissist parent attempts to damage or even destroy the other parent using the children as weapons. Because narcissists are often charming and convincing on the surface, their “protection” of the children against the supposed harmful influence of the other parent can be convincing. But the reality is – they are incapable of acting in the best interests of the child due to their egotism. 

Co-parenting with a narcissist

There are ways of coping with a narcissistic partner or ex-partner, and strategies exist for co-parenting with a narcissist, though in this situation parallel parenting is likely to be more successful than co-parenting. Parallel parenting happens when parents share care and contact within strict boundaries and interaction between the parents is reduced to a minimum. Forget attending school parents’ nights together. Each parent has a separate appointment to discuss the child’s progress. Tedious for the teacher? Maybe. But critical for fostering a healthy and safe emotional environment for the child.

Borderline personality disorder

The parent with borderline personality disorder (BPD) has difficulty controlling their emotions. In many ways they are like children. When their emotions become too intense for them to handle, they become angry. They are also hyper-emotional – certain circumstances trigger a much greater emotional response than a healthy adult would display. Although the BPD may be diagnosed and acknowledged, the emotional upheaval of divorce and the subsequent disruption in family life may exacerbate the BPD. It may manifest as parental alienation.

Sufferers of BPD often play – or genuinely think they are – the victim. They blame others for the tragedy in their lives, and as a way of self-soothing they victimise those around them. This is prime parental alienation behaviour – a desire to make the other parent suffer by casting them as incapable, unloving, etc.

The parent with BPD may distort reality, accusing the other parent of flaws that are in fact within themselves, such as selfishness or instability. The BPD parent may also seek to divide the families by lining up allies and positioning anyone not on their side as “the enemy” – a tactic known as “splitting”. They enlist their children as little fighters for their cause, and the children become alienated not only against the other parent but potentially against much-loved grandparents, aunts, uncles, cousins, etc. The support network that children desperately need in the wake of divorce is eroded and, of course, no one suffers more than the most innocent victims – the children.

Co-parenting with someone with BPD

Much of the advice given for co-parenting with a narcissist applies to someone with BPD. Both are personality disorders and, while the affected individual’s behaviour can be infuriating and exhausting, they deserve an element of compassion (however small!). Most people, given a rational choice, would opt to be well-balanced, mentally healthy, mature adults. But don’t let sympathy turn you into a doormat. Your children need you to provide stability, as their other parent will be incapable. You need to put their interests first, and part of that means putting your interests first. It’s very hard to find the energy a young family demands if you are feeling drained and debilitated by your ex’s treatment of you. Make time for self-care. It’s not selfish; think of it as part of your duty as a parent.

In addition to caring for yourself and setting clear boundaries (practising parallel parenting rather than co-parenting), these tips will help you deal with a BPD parent:

  • Acknowledge their feelings. Someone with BPD is acutely emotionally sensitive, but they’re not on another planet. Like any human, they want to be accepted and listened to. Try to see the issue behind the tantrum and acknowledge it in an adult manner. This may make a reasonable conversation more likely…or at least possible.
  • Manage your own emotions. This may mean suppressing them. Don’t get sucked into the BPD’s emotional maelstrom. This will only intensify an already volatile situation. Take deep breaths or use whatever coping strategy works for you.
  • Don’t take anything personally. Your ex is very likely to blame you for the divorce, and therefore for any distance that has arisen between them and their children. This will happen regardless of who initiated the divorce or whose behaviour triggered it. Blaming others for their problems is a classic BPD tactic. Their coping mechanism for the guilt and shame the divorce has generated in them is to build themselves up by knocking you down. However hard it may be, remember that this is a symptom of the disorder; you are not to blame!
  • Be honest with your children, but in an age-appropriate manner. What you tell a six-year-old will be very different from the conversation you have with a 16-year-old (but remember, teenagers are nowhere near as mature and “sorted” as they may appear). Keep the focus on the importance of a safe environment for them and the need to help them maintain their relationship with both parents. It’s OK to say that the other parent has some challenges and you are both working out the best way to manage the situation. Keep your feelings about your ex to yourself and explain the circumstances as unemotionally as possible. Because it is likely the other parent will give the children a different point of view, your calm, rational demeanour will make a stronger and more lasting impression on them.

Do you need help from an attorney?

Do you think your ex is attempting to alienate you from your children? Are you trying to co-parent with someone with a personality disorder and need help? Cape Town attorney Simon Dippenaar & Associates Inc. (SDLAW) is an established Cape Town law firm with extensive expertise in divorce and family law. Whether you are the custodial or non-custodial parent, you have rights in your family law matter. SDLAW will defend and champion your rights and help you arrive at a workable solution, whether you are undergoing divorce or developing a parenting plan post-divorce.

Specialist divorce lawyer SDLAW will safeguard the rights of your children and will help you work towards a brighter future for all of you. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Read what satisfied clients have to say about Simon Dippenaar & Associates, Inc.

Further reading:

Divorcing a Narcissist

Child Care and Contact After Divorce

Moving with Children Post-Divorce – What You Need to Know

Divorcing with Dignity

Cost of Divorce

 

Reeva Steenkamp Foundation

REEVA STEENKAMP FOUNDATION ENDORSEMENT
“On behalf of all abused woman and children The Reeva Rebecca Steenkamp Foundation would like to thank Simon Dippenaar from SD Law South Africa for going beyond and assisting our client with a very difficult case.
Family Law requires a very special person, just being a good lawyer is not enough.”

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Post Divorce: Mindset Reboot

Five Limiting Thoughts Reframed Post Divorce

Post divorce: the divorce is final. You have spent countless hours in and out of court and in lawyers’ offices. Most of your time and energy was directed toward the process. You finally have space to think, to reflect, and to feel. It is now that regrets sometimes surface. This is the perfect time to release any lingering limiting thoughts. Let’s examine a few common ones and replace them with fresh perspectives for your new life.

post divorce help mindset - divorce attorney and family lawyers

Post divorce Regret #1

I stayed too long. Why did I waste so many years in that relationship?

Response:

You were in that relationship exactly as long as you were. Things take as long as they take. You are out now.

Reboot:

Every year post divorce from this point forward is a year where I consciously choose who and what is in my life.

“I did then what I knew how to do. Now that I know better, I do better.” –  Maya Angelou

Post divorce Regret #2

I deferred pursuing my personal dreams to prioritize him (or her) and our goals as a couple.

Response: You believed in your relationship and your future together and thought your turn would come. You trusted that and were patient.

Reboot: I’m proud of the contribution and commitment I made to the relationship. I now devote my drive and ambition to realize my dreams post divorce.

It is never too late to be what you might have been. ~ George Eliot

Post divorce Regret #3

I do not have the wealth and assets we had as a couple.

Response: You were a large part of how that wealth and those assets were amassed.

Reboot: Though the money and assets have been divided, my skills and abilities have not. I will use them to generate additional personal wealth.

Abundance is about being rich, with or without money. ~Suze Orman

Post divorce Regret #4

I can no longer afford the standard of living I enjoyed while married.

Response: There were two incomes, two people supporting that lifestyle. You now have one income. This does not mean you will not live well. Think better, not bigger.

Reboot: I have the freedom to take whatever place I choose and make it reflect my interests, who I am. I can unleash my creativity to make the perfect home.

 Be content with what you have; rejoice in the way things are. When you realize there is nothing lacking, the whole world belongs to you. ~Lao Tzu

Post divorce Regret #5

I’ve lost so many friends.

Response: The marriage is not the only relationship that ends with the divorce. You are now a single person and no longer fit into couples gatherings. Some people will decide they can only continue friendship with one of you and you may not be the one. Your pursuit and creation of your new life may make some people uncomfortable and they may detach. But, the world is full of people seeking friends who are in sync with the new you.

Reboot:

I am going to join some new groups or a new church and open my heart to all. This is my opportunity to create a new tribe. If some people have turned their back on me then it is because they are NOT my people. I seek and embrace my people!

When people can walk away from you, let them walk. Your destiny is never tied to anybody that left. ~ Reverend T. D. Jakes

Taking a firm grip on your thoughts post divorce, replacing unproductive thoughts with ones that move you forward, will give you a jumpstart on creating the life you desire and deserve.

Source: ThriveGlobal (emphasis by Cape Town Lawyers: SDLAW*)

*Simon Dippenaar & Associates, Inc. is a law firm of Cape Town Divorce and Family Attorneys. Now in Gauteng, and Durban. Contact one of our divorce attorneys or family lawyers on +27 (0) 86 099 5146 or email sdippenaar@sdlawco.za.

Further reading:

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Parental Alienation and the Child

Deliberate parental alienation harms the child more than the parent

Source: SDLAW

When divorcing or divorced parents engage in tactics that give rise to parental alienation, the individual who suffers the most is the child. It may be tempting for an aggrieved parent suffering through an acrimonious divorce to want to portray the other parent in the worst possible light. Hurt and anger can cause a parent to denigrate the partner in front of the child, causing parental alienation or its more severe sibling, Parental Alienation Syndrome. If one parent feels isolated and betrayed, it’s a natural response to want the child or children “on side”. However, whether the other parent deserves the label of villain or not, this behaviour is extremely harmful to the mental health of the child.

A parent-child pair experiencing parental alienation can rebuild a trusting relationship. It takes time and patience but is important for mental wellbeing.

No one is innocent – except the child

According to Cafcassthe UK’s Children and Family Court Advisory and Support Service, parental alienation is rarely one-directional, i.e. aimed at one parent by the other. More commonly, it is a complex set of behaviours that may impact on every transaction within the family. The post-separation environment is a high-conflict zone. Rarely is one parent entirely the victim and the other solely the perpetrator of emotional punishment. When parents are at war, the child becomes collateral damage.

Impact of parental alienation on a child

Parental alienation is emotional child abuse and should be treated as seriously as any other form of abuse. Despite this, it is often not recognised or acknowledged in child custody disputes. The alienated child often feels insecure, anxious and overwhelmed, experiencing feelings of guilt and confusion.

The alienated child may be confused as to the adult-child role, particularly if they are older, i.e. pre-teen or teenage. Triangulation, the emotional manipulation of the child to create an emotional partner, is a common feature of parental alienation. In this scenario the child feels responsible and obliged to step in and protect and care for the victim-parent. The child is robbed of the ability to form trust (the cornerstone of relationships) in intimate relationships and lacks confidence in forming and maintaining healthy relationships. The child may also display clinging behaviour and separation anxiety. They may develop anxiety and have poor peer relationships and other mental health issues. The alienated child suffers from a loss of a sense of self and is placed within a situation that is emotionally beyond their coping ability.

Anyone working with the child or the family should be alert to these symptoms and prepared to step in.

What can be done?

As per the philosophy behind the Children’s Act, the interests of the alienated child must come first. Whether parent, grandparent, caregiver or professional mediatoranyone playing a role in the child’s life must view every family interaction through the lens of the child. The focus should be firmly on the alienated child and the factors that have contributed to the alienation. Then it is critical that steps are taken to rectify the situation. There is no evidence to show that waiting for alienation to resolve itself is effective, nor should children be allowed to decide which parent they should live with.

Rebuilding trust step by step

There are many instances of adults who were permanently alienated from one parent as children and have suffered life-long emotional consequences. To prevent this long-term outcome, there are ways to rebuild trust and re-establish a loving parental relationship. The child and alienated parent need to be assisted in the process of re-attachment, which must be sensitively phased and take account of the child’s developmental level, maturity and emotional resilience.

Here in South Africa and in other countries there are various psycho-educational and family therapy programmes that attempt to help severely alienated children of divorce rebuild the damaged relationship with the alienated parent. These programmes aim:

  • To initiate contact between the alienated parent and child
  • To provide psycho-educational training to the parents
  • To develop child-focused parental involvement
  • To re-establish reality and correct distorted perceptions of the self, both by the child and by the parents
  • To relieve the burden on the child and distance them from the conflict of loyalties between the parents
  • To rebuild the fractured emotional relationship by creating new shared experiences in a structured, safe and relaxed environment
  • To restore communication
  • To improve conflict management and family dynamics

Through these programmes children re-learn a healthy and balanced view of both parents and gradually renewed and happy parent-child relationships can develop. But it takes time. However hard it may be, the alienated parent must be patient.

Is this you?

Have you experienced parental alienation? Are you estranged from your child or is your contact with your child traumatic due to symptoms of parental alienation? Cape Town Divorce Attorneys, Simon Dippenaar & Associates Inc. is an established Cape Town law firm with extensive expertise in divorce and family law. We will ensure your legal rights are upheld and can link you to the appropriate support that will enable you to restore your relationship with your child.

Cape Town Attorneys and Lawyers, Simon Dippenaar & Associates Inc. has a reputation for empathy and professionalism, with a personal touch. We will listen to you and help you find a solution that is in the best interests of all parties – most importantly the child.

Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Read what satisfied clients have to say about Simon Dippenaar & Associates, Inc.

 

Further reading:

 

Reeva Steenkamp Foundation

REEVA STEENKAMP FOUNDATION ENDORSEMENT 
“On behalf of all abused woman and children The Reeva Rebecca Steenkamp Foundation would like to thank Simon Dippenaar from SD Law South Africa for going beyond and assisting our client with a very difficult case.
Family Law requires a very special person, just being a good lawyer is not enough.”

 

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Six Key Disqualifiers for Divorce Mediation

Which Path is Best for Your Divorce?

The word is spreading over coffee cups and in the carpool lane: if you can handle your divorce through a mediator, you’ll avoid a great deal of drama, almost certainly end up with a fair and equitable settlement, and pay a fraction of the cost.

How to identify when mediation is not an option - divorce and family attorney cape town

But in my practice as a certified divorce mediator, I’ve seen at least six situations that tell me my would-be clients won’t be settling with me. I advise these couples that it’s time to give up the dream of negotiating a simple, low-cost divorce; instead they need lawyers.

Domestic violence

I don’t work with couples when one is physically abusing the other. Mediation requires both participants to sit down together and be clear about what they think is fair. If honesty in my office is going to result in physical retribution at home, then both parties need the protection of lawyers, and possibly a protective order.

Child abuse

Divorce mediators in most (if not all) states are “mandated reporters”. That means that even an unprovable allegation of child abuse must be reported to the authorities. If I hear that a child might be in an abuse situation, my neutrality ends. Once that happens, I cannot effectively mediate a divorce case. It’s best to go straight to the divorce lawyers in those situations.

Belief that a spouse is hiding money

When one partner has always had control of the finances, the other can be left wondering what they don’t know. However, being uncertain is not the same as a strong suspicion that one spouse is hiding funds. If you’re simply not sure of the finances, you can certainly benefit from divorce mediation. If you think you’re going to need a forensic CPA to comb through your records in a quest to uncover hidden money, you’ll be better off with a divorce lawyer.

Refusal to get divorced

Sometimes I come across couples in which one person simply refuses to participate in any conversations related to divorce. This can be for religious reasons or simply an inability to face a painful reality. However, when one person is simply stalled by the fear of an uncertain future, that is fairly common and divorce mediation can be a great benefit in helping that spouse overcome his or her fears.

Unwilling to even consider compromise

When divorce is particularly painful, one spouse may react by making the divorce as challenging as possible for the other. That makes the reasoned and thoughtful discussions I have with my clients very difficult. Often the spouse in pain seeks out the most shark-like divorce lawyer (regardless of the thousands of dollars that will drain from any possible settlement) in order to exact retribution. Mediation works best when fairness and thoughtful decision-making are the goal.

Inability to tell the truth

Lies and half-truths are common between divorcing couples. It’s not usually a case of compulsive lying; rather, most lies are rooted in the impossible desire to lessen the pain of divorce. It never works; lies simply make a divorce more painful – but we are all only human. Still, if one partner is incapable (for whatever reason) of telling the truth, then mediation – which requires honesty – will not be successful.

Many clients are surprised by the conditions that are not automatically disqualifiers. I regularly work with clients who have mental illness, personality disorders, substance abuse problems, porn addiction, and repeated infidelities. In fact, people with these problems account for a large percentage of my successful divorce mediations. This makes sense considering it is these very issues which are often the cause of the divorce in the first place.

All I need for a successful mediated divorce settlement is a couple who can sit at my conference table, for two or three visits, with a willingness to listen, compromise and with the desire to get through the pain and move on to a happier, better adjusted future.

[…]

Source: THRIVEGLOBAL (emphasis by SDLAW*)

*Cape Town Divorce Attorneys, Simon Dippenaar & Associates, Inc., is a law firm of Cape Town Lawyers specialising in divorce and family law matters. For help, contact us on +27 (0) 86 099 5146 or email sdippenaar@sdlaw.co.za.

Additional reading:

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How to Navigate Divorce in Families With Special Needs

Families with special needs face a unique set of challenges, and experts say coping starts with communication.

Families with special needs children face a unique set of emotional and financial challenges that range from difficult and expensive to significantly life-altering.  Due to the unique stressors, these families are at a higher risk for divorce and then face the dismantling of the family structure, further compounding the day-to-day difficulties for the parents and the children.

Special needs divorce - divorce and family attorneys

What does it mean to have children with special needs?  

“A divorce involving a child with special needs means that a child has special challenges, which can run the gamut. In a divorce, we most often think of children with special needs as children who require a higher level of support from their parents — a child with autism spectrum disorder, Down syndrome, learning disabilities, attention deficit disorder, addiction issues as well as physical disabilities such as diabetes, hearing loss, and a range of mild to severe physical limitations,” says New York family law attorney, Sophie Jacobi-Parisi, with Warshaw Burstein, who often represents a parent with special needs children in divorce. These families are faced with the responsibility to seek expert diagnosis, treatment protocols, school support, and a financial plan to manage their new reality, but often the relationship collapses under the pressure.

 “Divorce with special needs children goes one of two ways”

“The divorce process for families with special needs goes one of two ways,” says Jacobi-Parisi. “When the parents are in agreement about the diagnosis, the care, and treatment of the child, then you have a less contentious divorce, one in which the parents will put their disputes to the side to save money and energy for their child’s current and long-term needs. But often, one parent agrees with the diagnosis and treatment while the other parent mitigates, disputes or denies it, creating significant conflict and it is a totally different divorce. It is expensive, exhausting and terribly sad.”

Parenting a special needs child completely shifts the day-to-day routine for an intact family, along with significant financial implications. As a result, there are often very specific roles that divorce then challenges in a potentially explosive way. “In a family with special needs children, one parent frequently steps forward to be the primary caregiver because there is just too much information, so when divorce happens there can be a reluctance to share information”, says Merriam Saunders, LMFT, a California licensed therapist in private practice who consults parents with special needs children. She is also a columnist for ADDitude Magazine and the author of a children’s book on ADHD, My Whirling, Twirling Motor.

“There can also be a general sense that the parent who held a lesser role in caretaking while earning the money, couldn’t possibly know how to care for the child,” says Saunders and this contributes to it evolving into a larger custody battle. Early intervention and treatment are often in the child’s best interest, so when there are cases in which one parent is the architect of the care, they should be able to move forward when a decision needs to be made swiftly, “however that does not mean the other parent should be locked out” says Jacobi-Parisi. “Lawyers who better understand all of the nuances of the legal, financial, schedule, and interpersonal dynamics can better guide and structure settlements and when absolutely necessary, provide litigation strategies to meet the family’s challenges.”

How can we better support divorcing families with special needs ?

While we have great compassion for families dealing with different kinds of special needs, we are often unaware of the complex emotional issues faced by the parents. “They often feel like a failure because their child isn’t typical, and then they will feel guilty for feeling that. These are shaming emotions, so they might not talk about it much, and they may feel like an inadequate parent. Then they may think ‘I couldn’t keep my marriage together, so I really am a failure.’” says Saunders. Seeking counseling from a parenting expert in this field provides insight and support unique to both parents’ perspectives and day-to-day burdens.

The workplace and our communities can be unaware of what families need during this time. “People who are working full-time, have children with special needs and are getting a divorce really need extra support. More awareness of the day-to-day difficulties with divorce would go a long way to support these families,” says Jacobi-Parisi, who is also the parent of children with challenges and is quick to point out that she and her husband are on the same page.

Parenting is a privilege and it is devastating when divorce challenges our simple ability to be with and care for our children. In special needs cases, the pressures and worry can be even more highly charged. As with all aspects of divorce, adopting a longer-term view and putting the needs of our children ahead of our own needs, while easier said than done, will reduce stress and conserve resources.

Whenever possible, psychoeducation for the parents about what the child is experiencing and how two parents can learn to co-parent while disagreeing about each other’s ability to care for the child is an opportunity to minimize the legal fight and focus the finances and time on the family dynamic and needs. “Therapists are a lot less expensive than lawyers,” adds Saunders.

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Source: THRIVEGLOBAL (emphasis by SDLAW*)

 

*Simon Dippenaar & Associates Inc. (SDLAW) is a law firm in Cape Town (and now in Gauteng) with specialised Cape Town divorce attorneys and family lawyers. Contact Cape Town Attorney Simon on +27 (0) 86 099 5146 or info@sdlaw.co.za and her or one of our Cape Town divorce attorneys will contact you back.

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The financial impact of marriage and divorce

Marry with your heart and your head. You are in love and completely infatuated, but you still need to think about this without emotion.

People think that marriage is forever, but unfortunately for one out of every two people, it’s not the case. Plan for the worst, and this doesn’t only mean for divorce; what if one of your businesses fails or one of you incurs major debt?

Finances marriage divorce - divorce attorney, family lawyer Cape Town

Plan for the worst, and this doesn’t only mean for divorce; what if one of your businesses fails or one of you incurs major debt? Photo: Pixabay

If you don’t think with your head about the finances in your marriage, the implications can be far-reaching. For example, if you don’t sign a prenuptial contract before the wedding, you’re automatically married in community of property. This means that if one partner’s business goes belly-up, you’re just as responsible for the debt as they are.

Don’t let emotions derail your planning. Money matters are just one of the blocks that you must tick. See a lawyer for your prenuptial contract. There are various options when it comes to marriage contracts – choose what is right for both of you.

Learn to talk about money. The road to the pulpit may be short, but the journey with your partner isn’t. Make sure that you start off on the right foot by being honest about money matters, even before the marriage.

If you can’t talk and agree about the difficult things before the marriage, how will it work after you get married? Both of you must play an active role in money matters. You’re investing in your future when you talk about it and make decisions together. When you talk about your finances it doesn’t mean you don’t trust each other, but rather that you’re a team that talks about everything and can trust each other.

Plan so that you can afford your wedding. Beware of social pressure that leads to spending too much money on the perfect ring or perfect wedding day. The expectations for weddings can be massive, but think carefully before you try to make your dream wedding come true and you find yourself in a debt nightmare. After the honeymoon there’ll be other expenses, like setting up a house and raising kids. Don’t put yourself at a disadvantage.

Your marital status influences your money matters. Did you know that married couples pay less for short-term insurance? It’s also cheaper to be on one medical aid and married couples generally also get tax benefits. Understand the full impact on your finances, and adjust your combined financial plans accordingly.

Only one thing is more expensive than getting married – getting divorced.

You don’t want to think about it, but if you should decide to get divorced, it’s very important to be realistic about how expensive it is. It starts with lawyer’s fees, and then it’s goes on to the costs of two households, moving, and both having to start another home from scratch.

Whatever your scenario, be realistic, determine how much it’ll cost you to get a divorce and adjust your financial plan accordingly.

In summary:

1. Get married with jour heart and your head.

2. Learn to talk about money.

3. Plan so that you can afford your wedding.

4. Your marital status influences your money matters.

5. Getting divorced isn’t cheap – plan realistically.

Jeanette Marais is Deputy Chief Executive at MMI Holdings. This article was supplied by MMI. 

Source: BUSINESS REPORT ONLINE / IOL (emphasis by SDLAW*)

 

Simon Dippenaar & Associates Inc. is a law firm in Cape Town of specialised divorce lawyers and family law attorneys, offering highly personalised divorce and family attorney services in Cape Town.

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