Doing it right by law:
DIVORCE is an emotional roller coaster, so the best way to make sure you come out in one piece on the other side is to make the ride as pain-free as possible.
Staying on top of legal matters is a good way to ensure that the divorce goes through smoothly and causes the least disruptions in your life, say experts.
It is inevitable that personal and work lives will collide unpleasantly, says divorce lawyer Datuk Andy Low Hann Yong.
“Personal problems will affect work performance, while work obligations will take up time needed to handle these problems. In such a situation, the main concerns would be work commitments, the legal process, time constraints, finances, and children (if any),” says Low.
A big concern is how long the divorce process takes, and how long of a grace period to request from employers.
It depends on several factors, including the type of divorce petition (joint or single), complexity of the case, efficiency of the lawyer, etc, says Low.
An uncontested joint petition is where both parties agree to the divorce and related matters such as child custody, maintenance and property division; this is the simplest form and takes between three and six months. “In such cases, the parties may just need to attend court once,” he says.
On the other hand, a contested single petition, where the parties are not in agreement, could carry on for years. Similarly, the cost of the divorce – court and legal fees – increases with the complexity of the case, he explains.
Thus, communication with the employer is important, he stresses.
“If the employee needs to take leave frequently, he or she should make known the bare minimum facts to his or her team and the company’s HR department.
“This will allow for flexible arrangements and delegation of work.”
Absenteeism may become intolerably frequent as the employee struggles to make new living arrangements, such as child visitation and school logistics, or has to attend legal consultations or court hearings. All this can lead to declining work performance, Low says.
“If the employee would like to minimise the disruption during office hours, she or he should look for lawyers who can attend to clients after office hours or on weekends.”
Low adds that the divorcing couples should also be aware that they are entitled to spousal maintenance.
“For example, the employee may have concerns regarding financial arrangements during and after the divorce proceedings as she goes from a dual-income to a singleincome household.
“She does not need to wait for the full disposal of the divorce proceedings for financial aid in the form of spousal maintenance; the courts may order an interim payment of maintenance even as proceedings are on-going as well as maintenance after the divorce is finalised.”
Family lawyer Datuk Dr Arunan Selvaraj says it is important for your lawyer to understand your schedule and commitments, as well as your financial situation.
“Whatever your situation may be, if you are going through a rocky road in your marriage, it is advisable to visit a lawyer, especially if you are unsure if divorce is the right path for you. Some lawyers offer consultation and can advise on the entire process and prepare you if a divorce is necessary.”
He says the first step to getting through a divorce is accepting it as a part of your reality.
“If you are in denial, you will inevitably be trapped in the past with no way forward. The frustration that arises as a result will slowly but surely reveal itself in your work life and personal life.
“It is also important to inform your superiors about the divorce, so they can understand any changes in your performance.
“Some people work more under stress, while some work less. Regardless of which type you are, it is important to keep the necessary people informed so that they can take some responsibilities off you temporarily, should you need it.”
One of the most important things to do if you have decided on a divorce is choosing a lawyer you are comfortable with, advises Dr Arunan, whose firm specialises in matrimonial and family law.
“The right lawyer will be able to prepare you for what you’re up against, as well as educate you on your rights under the law.
“Legal fees now are higher than ever, therefore it is important to engage a lawyer who is reasonable and able to provide flexibility, should you need it.
“Always ask your lawyer in advance about fees. In most situations, they should be able to give you an accurate estimate before proceedings begin, which will aid you in planning your finances.”
It is also important to establish a good two-way communication with your lawyer so he or she can manage your case effectively, he stresses.
“Throughout the process, there will be many dates allocated to your case; however, you would only be required to attend hearings, not matters such as interlocutory applications.
“Case management and hearing dates are usually allocated in advance, so it should be possible for you to apply for leave from work. Additionally, if a given date is not suitable for you, it is also possible to get a different date from the court via your lawyer.”
Ultimately, says Dr Arunan, although he is primarily a divorce lawyer, he still believes that divorce should always be a last resort.
“It should not be viewed as an escape route in hard times. Always persevere and try to make things better. At the same time, if you are planning to get divorced or are going through one, remember, tough times don’t last, tough people do.”
Noting the emotional cost and disruption a divorce will have in a person’s life, lawyer Alan Kang says it is important for the couple to understand the process of divorce in Malaysia, and to try to talk to each other before taking any action.
“My advice to them is to divorce with mutual consent if possible, as it is the fastest, easiest and cheapest way. The cooperation of both parties is essential.
“The husband and wife should calm down and discuss with the lawyer the best way to sort out matrimonial property, child custody, legal fees and other rights. With a joint petition, both parties can settle all the issues, their interests and rights in mutual consent.”
If both parties cannot agree on a joint petition, though, there will be many issues to deal with, Kang says.
“Both parties should appoint reliable lawyers to give suitable advice when discussing their interests and rights and to represent them or accompany them to court.”
Kang believes that technology has made the process easier, as we are not restricted to limited communication methods of the past.
“We don’t have to meet in the lawyer’s office all the time and can communicate through social networking sites and messaging apps such as WhatsApp, Skype and Messenger.”
However, he advises: When opting for alternative means of communication instead of the traditional face to face way, the client needs to confirm with his or her lawyer that their communication is still protected under lawyer-client privilege as set out under Section 126 of the Evidence Act 1950.
As for the amount of fees and mode of payment, it all depends on the arrangement between lawyer and client.
Family lawyer Datuk Fion Wong says it is important that the parties to divorce know the amount that will be charged in legal fees before proceedings begin.
“If the legal fees are charged progressively then it is important to ask the lawyer to list down the stages/applications that are to be made in court so you will have a reasonable expectation of the fees,” says Wong.
The client doesn’t need to worry too much if the fee is a lump sum because the time consumed and applications made for the proceeding would have no effect on the fee.
“Legal fees can also be made in different stages but that would also mean that one has to manage one’s finances properly so one would be able to pay the fees in later stages.”
According to Wong, a lawyer can choose to terminate his/her representation if a client fails to pay the fees. “That person would not be able to get a new lawyer unless the new lawyer would be able to undertake that the outstanding fees are paid,” she says.
As for time management, Wong also assures that it is not necessary to meet face to face whenever there is an issue or question.
“Most of the questions can be answered by the lawyer through e-mail. Usually, a meeting is only required for the signing of papers, with the date set in advance by the lawyer so that the client is able to plan better. Such meetings are best held during lunch hours so as not to affect work,” she notes.
Similarly, a divorcing party can arrange in advance for leave from work to attend court, as dates are usually set early.
She explains that in Malaysia, for non-Muslim divorces, the parties usually would only need to show up in court or chambers for mediation, trial (usually for one or two days; if it’s more than two days, the dates will be re-scheduled in about one to three months’ time); and/or hearing (usually less than two hours).
Although she always advises her clients not to share every fact and detail of the divorce with colleagues or friends, she agrees it does help for a divorcing employee to inform his or her superior about the divorce.
“Telling others at the workplace might overburden you, or even invite negative comments or wrong advice, but if you tell your superior or anyone who you are working closely with about the divorce, they might be able to help when you need to take a day off or go on leave at short notice,” says Wong.
Ultimately, Wong advises divorcing employees to leave their divorce matters to their lawyer and focus on their work, so that their work performance would not be affected.
“Because at this stage not many people can afford to lose their income,” she says.