Over the last 10 years in practice as a family lawyer, I have heard many things said about the way financial settlements are decided. It is clear there are more than a few misconceptions hanging around.. here are 5 of the most common ideas:
1. It’s always 50/50.
2. The wife always gets more.
3. Superannuation doesn’t count.
4. Once you separate, whatever you get after doesn’t count.
5. The one who “earned the money”, gets more.
6. Spousal maintenance and child support are the same.
What you should know.
There are a lot of factors that are taken into account when working out what an appropriate financial settlement looks like.
Often times, people enter negotiations relying on these misconceptions – as either a starting point, or their end point without ever really knowing or understanding whether this is the proper legal position, for them.
So, what is relevant to a financial settlement?
First – what do you own? And what do you owe? (your assets, debts and superannuation)
Second – how did you get it? (What did you each start with? What did you each do during your relationship? Did anyone give you some help?)
Third – what do you need in the future? (how old are you both? Can you work? Do you work? How much do you earn? Do you look after the kids? Do you get financial help from anyone else – or will you in the near future?)
Fourth – is the outcome fair? (What’s the reality of your property split – what do the numbers say, and how do they work?).
Things you should know:
1. You and your former spouse can agree on how you want to divide your property without going through the family law courts. There are many ways you and your former spouse can agree on how to divide your assets. You can read a snapshot description here.
2. If you can agree, you can formalize that agreement by making an application for consent orders in the Family Court.
3. If you can’t agree, and most separating couples can agree with some help, some communication and an expectation that reaching an agreement will need some level of compromise, you can give control over the outcome to a judge who will decide what an appropriate property settlement should be after taking into account various legal principles.
Other important things to keep in mind for your financial settlement:
1. You should get legal advice about your family’s unique and specific circumstances.
2. Your property settlement will be different to your friend’s property settlement, no matter how much your lives look alike.
3. Compromise, at some level, will be necessary and is appropriate.
4. You should try and negotiate.
5. You may need some counseling at some point – whether to deal with the loss of a significant relationship or how to communicate, or re-define your relationship as co-parents (and that’s a really great idea!).
6. Financial advice or counselling is also a really great idea – particularly if you haven’t been responsible for the finances, you are receiving a large cash settlement or you need a financial plan for your future.
Megan Sweetlove is a divorce lawyer and the owner of Sweetlove Family Law. Based in Crafers in the Adelaide Hills and also with consulting rooms just outside Adelaide CBD, Megan has worked with families who are experiencing separation and divorce for the past 10 years and is committed to assisting her clients find respectful outcomes to their separation, away from the Court process and with a focus on having a healthy future.
If you or someone you know needs assistance during divorce you can organise a complimentary 20 minute phone appointment with Megan here.
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