The process and concepts to be applied by a family lawyer when dealing with a complex financial matter are really no different to those involved in a straightforward financial matter. There are still four basic steps to a just and equitable property settlement but each of those steps requires a high level of skill and expertise by the family law practitioner.
In this first article of a series of articles on complex financial property disputes, we examine the qualities that a good family lawyer should have and hopefully that will assist you or your clients in choosing and retaining a good family lawyer if the need ever arises in a complex matter.
It goes without saying that a good family lawyer in complex matters must have a degree of skill and intelligence beyond the basics of property settlement. A good family lawyer should have not only a high degree of knowledge and expertise in family law, but also a good knowledge of other areas that impact upon complex family law financial matters, including but not limited to things such as revenue law, corporations law, equity, trusts and the like. A good family lawyer will also be skilled in various accounting and financial tasks including an ability to understand and dissect financial statements, understand the concept of valuations and factors that impact upon valuation and an ability to analyse financial documents.
Good family lawyers in complex matters can develop these skills at a young age and old age and experience is not necessarily a distinguishing factor. Have a look at the family lawyer’s credentials and background – have they written articles and shown a passion for financial matters in the past? Have they got examples of work they have done in the past and does their profile show details about what they have written on and commentated on in financial matters?
In complex financial matters a good family lawyer’s role is separate and very different to that of an accountant, financial advisor or commercial lawyer. Whilst a good family lawyer should know when and how to use other experts, one must be careful not to choose a family lawyer who simply does not take on the responsibility of running the file and dealing directly with the complexities offered by the family law dispute.
There are many matters that arise in the commercial world and the business world that simply have a different take in the family law world. For example, just because there is a partnership deed saying that it is a “no goodwill” partnership does not mean that the Family Court will value a partner’s interest in a particular enterprise as having no goodwill or no value. The concept of “value to the owner” is a concept unique to family law jurisprudence.
Likewise, the lack of control of a minority shareholding, coupled together for instance with a lack of voting rights and rights to receive capital on winding up, would really spell the death and attractiveness of any shareholding being acquired in a normal business transaction. However, the receipt of dividends and other benefits from a minority shareholding in a family enterprise may be something capable of being valued and ascribed a value in the Family Court.
These are but two examples of some of the complexities that arise in family law matters.
The concept of property within a trust having a value is also something foreign to the commercial world. Obviously, a trust is not a legal entity and generally the holding of assets in a trust provide protection from creditors and invasive actions. However, that is not always the case in family law. The concept of “notional property” and treating the assets of the trust as notionally available between a husband and wife in a property settlement requires special expertise of a family law solicitor who is aware of all the factors and indicia that need to exist for such a treatment to be preferred.
It is often difficult to tell whether a family lawyer has such expertise, but generally, early on in a complex matter a good family lawyer will go straight to action in compiling a very detailed spreadsheet, schedule of assets and liabilities and corporate diagram. The reason a good family lawyer wants these documents available is that until that is done, there will be an inability on the lawyer’s part to actually identify the husband and the wife’s proprietary interests and then look to ascribe values to it. The actual identification of where a proprietary interest sits, and more importantly where the value actually sits (for example, in a complex web of entities) is one of the most crucial tasks and skills of an advanced family lawyer.
These are tasks that cannot be passed on to a financial advisor and also should not be done by an accountant. An accountant can be used to assist and verify the process, but ultimately it is the family lawyer who must use their skills and knowledge about the Family Court’s treatment concerning the identification of proprietary interests that means they have to do the job themselves.
Choose a family lawyer who can do this – choose a family lawyer who is not afraid to tackle complex matters head on and can read financial statements and tell you immediately during an initial meeting about what the issues are and about what the process will involve.
Some warning signs that should tell you that your family lawyer may not be up to the task include the following:-
- A history of not having ever written any articles or shown any passion in the financial area of family law;
- An inability to provide direct, on the spot advice during an initial conference as to the process;
- An over willingness to delegate tasks, for instance to brief barristers early on to obtain an opinion and/or to brief accountants or financial advisors to prepare schedules; and
- An inability to identify the key “big picture” issues in a complex property settlement.
Often, in complex matters, having some feel for what the end result may be is extremely important. Complex matters can sometimes grow legs of their own and take clients down a substantial path of investigations and costly exercises.
One of the initial questions that an experienced family lawyer will be asking is “where does the value lie and how do we access it?”. In other words, at the end of the day, if it is very difficult to extract assets and / or money to pay a spouse from a complex web, then a different tactic may need to be considered. Being aware of what the end result may be is an important sign that your family lawyer knows what they are doing.
Brett Hartley – Accredited Family Law Specialist