Here’s what we’ll cover
We all know someone who has gone through a divorce, maybe we’ve done it ourselves or been there for our friends. The one constant, no matter how amicable or otherwise is that it is tough.
Homes, investments, assets, debt, kids, pets it all comes under the spotlight. But throwing a successful business into the mix can make a tough time even tougher.
Whether it’s on the cards for you or a friend that you care about there are things we can do to make a tough time less tough, so I’m talking with Pepe Kish from Balance Family Law.
The reason I wanted to talk to Pepe about this? Her overwhelming drive and goal is to normalise a kind and collaborative approach to dispute resolution, who doesn’t want to see more of that in the world!
Here’s the shownotes
We all know someone who has gone through a divorce, and maybe we’ve even done it ourselves, or perhaps even been there for our friends. The one constant, no matter how amicable or otherwise, this is a tough thing for everyone to go through. We’re talking homes, investments, assets, debt, kids and pets. It all comes under the spotlight, but throwing a successful business into the mix can make a tough time even tougher.
Whether it’s on the cards for you, or a friend that you care about, there are some things that you can do to make a tough time less tough, so I’m talking with Pepe Kish from balance family law, the reason I wanted to talk to Pepi about this well, her overwhelming drive and goal is to normalize a kind and collaborative approach to dispute resolution. And who doesn’t want to see more of that in the world? So let’s dive into it.
Very happy to have you here Pepi. I have to start off by saying that this is a like a little note to my husband, I am perfectly wonderfully happy with our marriage and this is not like some sort of research for divorce. But we’re talking to you, a divorce lawyer. Essentially you tell us about your business.
Of course OK, so I’m happy and I’m the director of balanced family law, which is a virtual law firm.
But we have a base in Canberra and we specialize in working with couples who are committed to resolving their dispute amicably. And if they’ve already reached an agreement, we have a terrific service called forward that helps them to make that agreement official with very little sort of, you know, assistance from us or as much as they need. We call it our new sort of service.
That’s so, yeah, that’s what we love doing at balance. We also state planning and conflict coaching as well in addition to the traditional family law stuff.
Yeah, and I love the way you guys approach things. You’re very committed to having those that amicable resolution. I think that’s so important and that’s really what i’ve noticed with you guys is that really stand out commitment to the amicable solution when it comes to divorce.
And let’s face it, when we’re talking businesses and you know my listeners are business owners, we all know someone who’s either gone through divorce or maybe you’ve done it yourselves. You’ve seen your friends go through it.
When there’s a business involved as well, I kind of wanted to talk to you today about how it is we can make it less stuff less tough because running a business is hard enough, let alone having divorce proceedings and things going on in the background that can get really ugly and nasty. So if we are going through that kind of awful turmoil in our lives. Or, you know, someone who is what? What is it that we can do to sort of make it a bit easier for ourselves.
Is it just as simple as trying to be amicable?
I think trying is a really good first step, but when a client comes to see me, the first thing I say to them is you’ve come to see me and you’re desperate for some legal advice, but just hold that thought for a moment because we’re going to take a few steps back and I want to hear your story and I’m going to listen. And then we’re going to talk about, I guess your emotional state, your mindset where your head’s at, at that point. And after we do that, then I’m going to say all right.
Are you ready for the legal advice? Or perhaps should we first wait so that this sort of process can also happen with the other party?
The reason we like to do that is a person who’s separating is only one half the other half of course is the ex and together they have a complete story. So we’re very careful when we work with clients to say look, I could give you all this advice until you all these things about what your rights and entitlements maybe based on your perspective and your retelling of your personal story. And that’s all well and good. But the other person has perspective too and they have their own point of view and sometimes, and most of the time, actually it’s best in the full picture before we start giving you advice and telling you or even advising you what might be the best thing to.
It’s the old adage, isn’t it? There’s your side of the story. My side of the story. And then there’s the truth so, what better place to start than for you as an independent consultant? Basically to stand back and gather all of the information and form your opinion on where it is that this family are at, and perhaps what’s the best way forward for them.
Absolutely, and we work with our clients to own their story and own, you know, the process we provide support and guidance. We’re not there to take their problem. We work alongside them, giving them as much or as little help as they need to reach that amicable outcome. And, you know, achieve their goals ’cause often when the client comes to stay off like come to balance family law for arrays and they’ve seen about a side read about us. They’ve looked at our social media and they’ve said, OK, I like the look and feel of that and one of my goals is to stay friends with my ex or to, you know, make sure we don’t end up in court and things get really nasty.
We wanna be able to be a great mom and dad to our kids and Co parent them together.
The clients that tend to be attracted to the work that we do are really committed to transitioning
What extra difficulties come along with the divorce that involve?
Rules of business. Let’s just say it’s a successful business. Maybe it’s a husband and wife actually operating a business together. Do you often see that from where you sit business is kind of being sort of stuck in the middle of. I mean, yes, there’s a lot of children often stuck in the middle and we will touch on that. But do you often see that business is stuck in the middle of it?
Well, it’s funny, you know because.
When I started my business so I said this is your third baby.
We are to the business as the new baby that takes so much of our time is really needy. But we’re also really passionate about it and so, yeah, absolutely.
We’ve worked with people who are in business together and also for just the one person who is stressful business owner and on the flip side, the partner of the person who’s on who’s a successful business owner. So we’ve seen it from all perspectives. And there’s absolutely some challenges because of business is seen as an asset of the relationship when people separate the first thing we do with them is, say, OK, let’s identify all the assets and debts that form the asset pool.
What each of you our own together, even legally separately, and we put that in the asset pool, and then we sort of determine how that should be divided between you.
So an asset includes a business and the business must be attributed a value.
Now, if the couple agree on that value and they can absolutely come up with it.
But if they can’t you know that can sometimes be tricky and we’ve got one at the moment where we’re just working with the accountant actually to come up with evaluation because it’s in that process that we’re going through with this particular family where we’re not going to court, we’re doing something called collaborative law, which I’ll talk about later.
So we don’t actually need a formal business valuation that can be used at court if things get really contentious, but often we do advise, particularly if it’s a tricky a more complex business, a business that’s been around for a long time. Particularly there’s other shareholders, or it’s a partnership.
To get that valued and we work with forensic accountants who do that.
How important are those relationships with your accountant with the other parties that are intrinsically involved in coming up with things like values and the those that are giving advice?
Are absolutely important because sometimes clients come to us and they go right. This is the family lawyer. She’ll solve everything for us and we’re like we’re not accountants and when we get a tricky business situation brought before us, what we do is we know what our limitations are, and we engage the right professional to help us.
So in our separation, one thing that is super important is the duty of financial disclosure. So both parties to a separation over the other, a duty, or they’re obliged to provide full and frank financial disclosure of their assets, and that includes everything about the business. So often the business owner, you know more often, particularly it’s a very successful business. They have their finance team. They have accountants doing all that stuff. They don’t just have all that information and they may not even have their head around it. So it’s really good for us to work with those accountants that work with that business and they can provide us with all the financial statements, the tax, the bars, the deeds, trust the bank records, everything that needs to be disclosed.
Because the duty is ongoing, they can keep us updated and they can let us know if anything is changing or if there are going to be any issues with certain steps that we might take to affect, uh, to affect our division of assets.
So for example say there’s some money. When this is the client we have at the moment you have money in a in a joint bank account and that money has become intermingled with the funds of the family, they’ve for whatever reason operated a single bank account, and then of course one party says OK as part of my settlement i’d like an amount of cash and the our client says, yeah, I’m happy to give that to you, but we have to go through the accountant to make sure that there aren’t going to be tax consequences. Or you know what’s the best way to do it so that both parties aren’t stung with a tax.
Yeah, there can be a lot of implications there, whether it’s selling down certain assets within the business, in or order to be able to finance payouts, but then yeah, whatever is there, capital gains issues involved there. Will it create an income tax liability? There are so many different things you need to come into play.
And we, as lawyers we might have a pretty good understanding, but we would never, ever or we shouldn’t ever do those things without consulting the appropriate professionals. So we always work very closely with accountants where there’s business interests involved.
So these things I’m imagining they can draw out all I know they can ’cause I’ve seen it over my experience working with businesses for the last 20 years as an accountant.
They can draw out for a really, really long time, and it’s always sad when you see something like a divorce being drawn out for so long because we all know that the only ones that really benefit from that at the end of the day are the legal teams, because they’re making a lot of money out of it. Now am I being harsh in saying that what’s your opinion on exactly that the long drawn out affairs that potentially don’t need to be so long and drawn out?
Well, yeah, I’m openly critical of certain lawyers who are see a family or meet somebody who is you know quite well by doing well financially, and they see it as an opportunity to drag matters out. It does happen. I’ve seen it happen first hand. And there’s more ability business owners are vulnerable if you have money. A lot of these firms, some of the bigger firms have very high overheads, very big teams, they are, you know, reliant on high percentage of their matters ending up in court, and litigation is extraordinarily it’s expensive. Mainly because you really lose control.
The courts come in and they dictate what happens and everybody is responding to that, so it’s not a proactive approach. It’s a very reactive one.
And everybody always feels on the back foot and that they’re always having to, you know, jump through another hoop, give more information. It’s such a draining process sometimes.
Very certain situations it is required, but most of the time it’s not. So yes, there are lawyers are out there who will advocate for court. But sometimes lawyers, you know they might have, you know their heart in the right place. They really want to help this family, but the way the court system is really designed is to set parties up as adversaries as Dad versus mom husband versus wife, almost in a contest to see. OK, who gets the most points to get the largest slice of the pie, you know who will get 70% to who will get 30%.
You know the contributions that each of them have made financial and non financial and their respective future needs and our business comes into that because I think you’ve probably heard it before of so of many of the listeners that the most valuable asset is the ability to create income.
And if a business is successful, it will be seen and given a high value. And of course, if you’ve got that business, it’s not something like a house that you can live in you cannot just withdraw money from it. As we talked about just before, so it’s kind of this. It’s wonderful thing it gives you the opportunity yet and you know, sometimes a very solid income, but it’s not the same as a house.
It’s not even the same as super, and clients can feel well, what am I going to do? I’ve just got this business and it’s got a high value.
It’s really important to work with parties at this point in time to sort of say, OK, let’s forget about this pie that we’re going to divide in half and decide who gets what percentage because no one is going to be really helpful, particularly if there’s a business involved or happy rather with that approach.
So what we like to do at balance and what is very different to traditional lawyers, who sometimes inadvertedly, as I say, create a conflict that ends up in court, is we work with clients to think about what their needs are, what their interests are, and what would be an outcome that would see them in a good enough position and also see the other party their acts in a good enough position so that moving forward they’re both going to be OK.
See the other party their acts in a good enough position so that moving forward they’re both going to be OK. That might mean that even though the business has given a high value, the other party says well. And that might mean that even though the business has given a high value, the other party says well okay I’m happy to give you some more cash and then perhaps because you have the benefit of a higher income you might pay me some money for a few years.
I mean, all sorts of things. We look at. Creative options. We work every type of option and we don’t think about percentages. We forget about all of that. We think about needs and what the ultimate goal is.
I love how you say that it’s really important for not only you to be in a good position but also the other party to be in a good position because we don’t often think about that during our divorce. It’s the other party position and their ongoing financial situation is often at the lower end of our priority list. But if you have children, for example with that other party, do you really want their dad
to be bringing them up with less than an ideal financial position or vice versa that their mother to be bringing them up with less than an ideal financial position just so that you do get to tick that box and say I won, I got more.
Yeah, absolutely, absolutely and it comes back to the goals of a lot of the time, even clients that are at loggerheads will acknowledge that they would like to have a good post separation relationship with their ex and taking a different approach and interest based approach is more likely to preserve or even rebuild that taking an adversarial or the traditional approach, which is the approach that most traditional lawyers in the family law space will take them through. We’ll see them set up as adversaries and in quite a combative environment where they each have to sort of outperform the other to say, well, I did more, my needs are greater than yours. You’ve got this. I don’t and it can blame game and it becomes really icky. Really, it’s not pleasant.
And so it’s not pleasant for the lawyers either.
What about preparing for it. Is there anything in particular that we can do if divorce is potentially on the cards? If you, if any, of our listeners are kind of thinking oh, things are not really working out for me in my own personal life or I have a friend who is really struggling with their personal life.
Is there anything that they can do to prepare? Or perhaps there there really isn’t?
Oh, absolutely. So there’s a number of ways you can prepare, and I’ll start with people who aren’t yet separated. So if you have a successful business and you’re married or in a relationship, or about to embark on a relationship, that’s de facto or a marriage, then think about a binding financial agreement, which you’ve probably heard about is, you know, known as a prenup.
If it happens before you’re married, but prenups or binding financial agreements can actually happen at any stage of the relationship and I I’m passionate about a very well drafted binding financial agreement which I’m going to call a BFA from now on, because it’s a bit of a mouthful to say the full the full term, but BFA is great. And especially if you are in a relationship and you’re in good terms and you’re communicating really well. You care about each other, and as a business owner you should you know be managing risk all the time, so you you’re in a good position to sort of say to your partner look, I’ve got this business life happens, divorce happens. Look, we don’t want that to happen to us. We’re not planning for that, but the sensible thing to do for my business, particularly if you’ve got other shareholders and all types of other things other people to think about, is, let’s talk about what might happen in the event we separate. Because as if you if you’re a director of a company, as you know you have obligations to that company that doesn’t matter, they don’t go away if you’re getting the You have a duty to the other directors into the company and to do what’s best.
So BFA is a really good way to do that, and it can take into account what might need to happen in the event of separation and it can say OK, the business could be attributed this value and these are the steps we might need to do if it’s like 25 years by the time we separate to make sure that this agreement will stand the test of time. So it’s a document that shouldn’t just be a template that you get from the Internet and you know you insert a bit of information. It is a very considered thought through document, well thought through document that contemplates some things that could go wrong along the way and has a remedy for each one within the actual agreement it factors in the future needs of both parties at the end of the relationship and how any issues or any disadvantages that either party might face could be resolved.
You can’t create a perfect world, but it’s a good attempt. It’s a good way and it’s equally acknowledgement that both parties at one point we’re very committed to making sure they were going to both gonna be OK and the BFA can help them do that in the event they do separate, which of course we hope they don’t.
How do people take it? How does the other party typically take that? Is it something that they need to come together with and say, OK, let’s go together and create this BFA but you see on the movies things like prenups and things like that they cause all sorts of fights and arguments. Is that just in the movies or is that for real?
It’s for real, we’ve got a few at the moment and you’ve got a business owner at the moment.
We actually, his wife, and understandably so. Of course, I mentioned before this duty of financial disclosure, so COVID happened and it’s been a tough time for his business so understandably, he feels a little bit defensive about his financial situation and you know there’s a sensitivity around that and we need to work through that and give him our opportunity to explain why things are the way they are and why they want to do things that the way that they’re doing.
So yeah, nobody really wants to strip everything bare. Put it all out there and imagine OK in the worst possible situation, what do we do? It’s hard and there is a stigma around Prenups and BFA’s for good reason. A lot of lawyers are really scared of them, but we embrace them because we see them as an opportunity for clients really to take control of their destiny of their future and keep the peace and really be sensible and smart and manage risk effectively.
So we embrace them and we are really working to try and change the mood around BFA and prenups as an effective tool in your business in your estate plan, yeah, just yeah. It’s a great I’m very excited about then we’ll have to talk about them. You know, in more detail one day. But yeah, if drafted well and the emphasis is drafted well, because we’ve seen so many on our desks that it had not only and they pose a risk not only for the clients who have entered into that BFA, but also for the lawyers who have drafted them. So yeah, they’re not an easy document to draft, but when done well, very effective.
Otherwise, as well, if you’re in your business, you should make sure that your shareholders agreement and your partnership agreement contemplates what might happen in the event of divorce and separation. Obviously there’s trigger events and how those trigger events they manage, so it’s really good to get advice from a good business lawyer in forensic accountant about those things. Don’t just slap together a shareholders agreement and hope for the best, make sure.
And this is where you would be covering things like ’cause. It’s not just all about the money, it’s not just about placing a value on that business, which is an asset and then just, you know, splitting it up there. Just like wills, people don’t like to think about, you, know the dark and gloomy stuff. They just think not out of sight out of mind.
But I think the best time to talk about those things is when you’re not under that emotional pressure. You know with the shareholders agreement that’s properly drafted, and if you’re in business with your spouse. You’re communicating well while you’re still together. You can really have those open and honest conversations without feeling like you’re exposing too much, saying too much, and potentially being too vulnerable because of you know the relationship breaking down and for whatever reason that’s happened for.
So it’s really important to revisit your shareholders, partnerships, whatever it is, your trust, whatever you have in your business to make sure that they will work for you.
For both of you, in the event that you separate because there are some little things that you can do that yeah, can make things a lot easier.
So if I’m a business owner and I’m in business with my husband and I’m thinking that I would like to put one of these agreements in place, not because I feel as though anything is going to happen in the future, but I’m just, uh, safety girl and I want to have things out there and on the table. Would it be appropriate to sort of have this overarching discussion with my partner at the same time, as talking about things such as your estate planning, you know what’s going to happen, not just if we’re divorced, but what if one of us passes away, you know what’s gonna happen?
How does that look? Does that kind of soften the blow potentially when it does come time to sit down and have the conversations, so it’s not just about if we get divorced, it’s about what if we die as well? How can we cover all of those things all in one hit?
Absolutely. So yes, we often have conversations with clients who are if they’re business owners and they’ve come to us for a will come and we will talk to them about things like the BFA, the binding financial agreement, because it also is an effective estate planning tool. It documents the intentions and it can really help if you know when one party dies with issues that can arise at the end of that with other family, new spouses, other, you know children, all sorts of things like that. The BFA is a really good record of intentions of the parties.
Yeah, great, so we’ve got BFA’s. We’ve got shareholders agreements. Is there anything else that’s kind of a bit of a stand out there that we should all consider having in our business?
I think the communication, I mean, it seems perhaps a bit obvious to say, but transparency is very important, so often not so often these days, but in the past we dealt with quite a number of families where one party would come to see us and the other had a business and they would say I knew nothing. I didn’t know any of this was happening and that doesn’t help when you’re trying to resolve things amicably because trust is affected.
So they’ve had an understanding through the entire relationship that the business is one thing, and when they separate and they see all the documents, they see that it was something else. So it’s not obvious to say it needs to be said. If your partner isn’t involved in the business, it’s important that they least have an understanding of it, because when you separate. If you separate if you’re going to have to disclose everything as far back as records go, potentially so should match up else you’re going to potentially have trust issues and you know it just makes things easier at the end and if both people have a good understanding of what’s actually going on.
Yeah, great advice.
What about as we’re moving through the process is like, is there anything we should have avoid.
Is there anything to look out for? If we’re talking to certain solicitors, or if we’re talking to friends, or if we’re starting to move through that process of a divorce, is there anything in particular we should avoid?
Yeah, you’re going to hear a lot of commentary from people who have had experience through their cousin, second cousin. Or you know those type of things and usually their horror stories. Sometimes they’re a good story and they end up with us because it’s been about us, which is great, but often it’s a horror story and it’s something that can cause someone to feel very frightened. And when you’re frightened and you act out of fear it’s often not in your best interests moving forward, so it’s important to take any advice you hear from well intentioned friends and colleagues with the grain and salt, and go and get informed.
Now if you go to see a lawyer, I always say do your research. Have a look at their website.
Have a look at their social media. Have a look at their testimonials. How does it make you feel when you when you look at that stuff? Does it make you feel positive, excited about the future or does it make you feel like oh I better protect myself and you know I need someone to fight for me.
Be careful if you get that feeling because it doesn’t have to be that way. We’ve worked with over 200 clients in the last two years and I’ve only had you know less than a handful have to go to court and two of those had to go to court because they had a specific issue. They needed litigation, guardians and the other two went to court because we were getting orders to do something outside of court. In those cases, arbitration and parenting coordination.
So settlement can happen peacefully. Court doesn’t have to happen at all, and so think about that. And be careful if you see or speak with a lawyer and they are giving you all this advice and guidance, which basically is music to your ears without even hearing what the other side had to say you know, sometimes to get business. People will tell people what they wanna hear, and that’s not necessarily coming from a place that’s a negative place. It’s coming from them, really wanting to help you and them wanting to see a reaction in you that is positive, like if you go and see a lawyer and they say Yep, we’re going to get everything you’re gonna have a lot of money. Will take him to the cleaners blah blah blah you might think oh good. I’m going to be financially stable, but I think it’s a little bit reckless for a lawyer to do that too soon. To be honest.
So I guess the good news is for us all that we can move through the process of divorce and come out at the other end being even if not friends, just having enough of an amicable relationship so that the business can move on and maintain itself not be brought down by everything that’s happening, but not only that, you’ve also oftentimes got children involved as well, so there’s a lot to consider and to be able to walk out at the other end with a level of a friendship or respect or trust, it’s worth something.
Yeah, and look up it’s going to be difficult if there’s a business involved, especially if both spouses are in partnership. It’s going to be difficult. That’s a given dividing that business, and particularly if both people want to keep it, is going to be hard, so why make it more hard by becoming adversaries and not being careful in how you communicate with each other. I mentioned very briefly something called collaborative law and collaborative law is a team based approach to settling disputes, and I advocate it really strongly where particularly where there are complex issues, such as owning a business. It’s particularly a successful one, because collaborative law allows the lawyers to work together as a team, so two legal brains working to help both parties find an outcome and not only that, we work with other professionals, so we bring in the forensic accountants we bring in the financial planners, whoever we need to help make that decision, a good one and informed one that will help both parties moving forward so the team based approach is always best, particularly where there’s a complex business involved.
Yeah, it sounds like common sense that we should all be heading down that type of path if we’re going through a tough time, you know, like divorce, but I think perhaps we just maybe assume that that’s not meant to be that way, that we’re meant to be arguing. It is going to be an awful thing that we’re going through. We are going to come out the other end hating each other so we might as well get as much as we can in the meantime, and it’s as though we need to just stop and take a deep breath for a moment and look around and realize well you know it’s 2021 now and not everybody needs to be so full of hate we can work this out together, but we just need to take a few deep breaths, but potentially give up a little bit here to gain a little bit there or whatever it might be.
But just be reasonable in our approach in our conversation and find ourselves the right team to do it for us.
Absolutely, I’m positive and I feel the tightest change in. I think the team based approach is really gaining momentum and the days of the big adversarial for firms that take you to court are numbered quite frankly, but I think you know there’s been that culture. It’s in the in the media. It’s everywhere that you know when you divorce it gets ugly. You go to court. It’s expensive. All of that and that’s so entrenched in everyone’s mind.
And as collaborative lawyers, I think we have and collaborative professionals. Really, I think we have an obligation to educate and change. It’s not going to happen overnight, like they’re saying that parenting commercial, but it will happen. I’m hopeful I’m very positive.
Yeah, that’s great. I’ve really enjoyed the conversation.
How can people get in touch with you? Where can people find you?
You can find us on our website which is www.balancefamilylaw.com.au. We also have a strong presence on Instagram and Facebook balance_family_law I think. Or will we follow each other Jen so if you and you’ll find us there in her followers.
Yeah just send us a DM. Give us a call, send us an email and we’ll reach out.
Yeah, great thank you so much for that advice I feel as though divorce is a is just going to be a fact of life for a lot of people. And if we can make it a little bit less tough on people on families on businesses. Then let’s do it, you know, let’s come out the other end better for it and not worth for it so really happy to have that conversation with you and you also have a business partner Johno as well. So between Johno and Pepi, I know that you’ll we would be very well taken care of over there at balanced family law. So if you’re looking around and need some advice, then yeah, definitely put your hand up and talk to these guys.
And Johno fantastic. He’s also an estate planning lawyer and he is the King of BFA’s. So absolutely I think you and Jen have to have a chat about the phase in his state plans.
Yeah we will. We will definitely have to follow the conversation on ’cause these things are really, critically important. Whether it’s going through divorce, whether it’s your estate plan is, all of these things that we don’t prepare for in life that can really impact us when things do sort of spin around and get a bit out of control. Whether it’s through death, divorce, or whatever else happens so.
We will definitely have to have that conversation. Thanks so much for joining us. It’s been really enlightening so I’ve really appreciate it. We will talk again soon. I have no doubt and wherever you are in the world, have a wonderful week, thanks.