I have decided to separate. What do I do next?
We recommend you to gather as much financial information together as possible (bank statements, receipts, contracts for purchasing real estate and assets) and keep a journal of important events.
For financial matters, the important things are to make a list of what assets and debts you have now (saleable assets, not furniture) when properties were purchased, how much they were purchased for and any inheritances or family contributions during the relationship.
If the relationship started a little later in life, it is also important to determine what each party had at the commencement of the relationship (assets and liabilities and family contributions or inheritances.)
It is also important to obtain you current superannuation balance, and if you can, a balance for your partner. If you commenced a relationship later in life, try and obtain your superannuation balance at the commencement of the relationship.
For children’s matters, make note of any issues that have occurred while raising the children.
If you are going to be living in different residences, try to make an arrangement with your spouse similar to the one that you would like to see happen in the future. If your spouse does not agree, it is recommended you obtain legal advice quickly, as it is quite difficult to change children’s arrangements that have been in place for some time.
We can assist you to find out where you stand in your situation before you commit to hiring a lawyer, by providing ½ hour free legal advice.
What is a property settlement?
A property settlement is the distribution of property, money and assets, and debts owned and attained during a marriage, or a de facto relationship. These assets include superannuation.
There is no fixed formula on a property division. It depends on the length of the relationship, whether there were children or not, how young a person is, their working capacity, their health, and what they have contributed to the relationship financially and non-financially.
If you wish to know where you stand in relation to a property settlement before you commit to engaging a lawyer, please call (03) 8390 7007 and make an appointment to receive ½ hour free legal advice.
How do I reach agreement on a property settlement?
You can reach agreement on a property settlement by direct negotiation with your former spouse and then attending a lawyer to formalise the agreement, or if you are not able to do this, or are concerned that you will be manipulated by your spouse or that you will not receive your proper entitlement under the law, you can engage a solicitor to try and negotiate with your spouse or their solicitor. Your lawyer can also recommend and arrange mediation.
If you cannot resolve your Property Settlement issues by negotiation or mediation, then you can make an application to the Court and a judge will determine the division of property after hearing evidence.
In determining a family law settlement, the important issues are as follows:
- What are the assets and liabilities of each of the parties?
- What contributions did each party make to the assets and relationship (direct and indirect financial and non-financial contribution, and contribution to the welfare of the family)?
- What are the future needs of the parties? What is a person’s likely future earning capability? Who will be spending more time caring for the children, and will this affect their ability to earn more income?
Property Settlement negotiations can be complex and diverse. There are many issues to be considered, and there is no set formula for each issue
Is there a time limit for negotiating a property settlement?
For marriages you must apply to the Family Court for Property Settlement and or Spousal Maintenance within 12 months of the date of a divorce order.
For de facto relationships you must apply to the Family Court for a property settlement and/or spousal maintenance within two years of the date you separate from your partner.
What is Mediation?
Mediation is a procedure where a person trained in the field of negotiation and family law (the Mediator) assists the parties to a dispute, to settle a dispute. The Mediator does this by identifying the parties’ issues, and assisting them to see the other person’s perspective and to explore options of resolving these issues. A Mediator cannot make a decision in the absence of the consent of both of the parties, so settlement can only be reached if both parties agree.
What is Spousal Maintenance?
Spousal Maintenance is the money paid by one party to provide continuing financial support to the other party post separation or divorce (for a limited time) usually when one party is unable to earn sufficient income to support themselves.
How do I reach agreement on children's arrangements?
In the breakdown of any relationship involving children, the interests of the children are most important.
At Aberdeen lawyers we realise that keeping your children settled and happy at such a traumatic time for them is crucial. We do our best to assist you to make a decision on parenting arrangements with your former partner for the care of your children, so the children remain as settled as possible.
We will help you develop a parenting Order or arrangement which will include who your children will live with, how and when your children are to spend time with the other parent, education or medical matters, holiday time and where each parent is able to reside.
Once you and your former spouse reach agreement, these terms can be formalised into permanent children’s Orders so each parent can feel secure about the care of their children in the future.
What other options are available to me to negotiate a settlement, if I don't want to go to Court?
We can give you advice on all the out of Court options for settlement, including Mediation, round table conferencing and negotiating in writing. These options can be less expensive than Court proceedings, if both parties are willing to negotiate reasonably, and the parties may finalise settlement much quicker.
Do I need a Family and Divorce Lawyer?
We know that this is likely to be one of the most stressful times you will experience in your life.
Our Family and Divorce Lawyers balance compassion with skilled advice, so that you will be comfortable speaking to them about very sensitive issues, and will be confident that they will guide you to make the best decision for your circumstance.
As family law can take some time to settle, we recognise that it is important to feel comfortable with and trusting of your lawyer. For this reason, we offer ½ hour free legal advice, to enable you to see if you connect with our lawyer before making a decision who to engage.
Can we be separated and still live together?
Separation can be under the one roof, but there are important factors that should not continue if you intend to live separately. For example, you are not considered as living separately if you continue to share the same bed and are still cooking and cleaning or providing financial assistance to your spouse.
You may be considered as living separately, if you are living in separate bedrooms, have separated all finances, buy and cook your own food, do your own washing and do not go out socially together.
What are my costs going to be?
At Aberdeen lawyers we try to minimise your costs by having you do as much of the work in the administrative aspects of your family law matter as possible.
For example, we can teach you how to collate your own material, and how to obtain and copy information which can save you a lot of money in legal costs.
Our Lawyers charge on an hourly rate basis. The complexity of your case and how much time it will take to resolve will govern the how much settling your case will cost. As much as possible we will try and keep your matter out of Court and to negotiate swiftly.
If matters cannot be settled by negotiation, we will give you an analysis of how much continuing to Court will cost you and whether it will be worth the time and cost of going to court.