If you are contemplating separation and wondering how to negotiate your financial settlement, or you have already separated and you are in the middle of negotiating your financial settlement yourself – you may be wondering: when should I see a family lawyer?
Perhaps you are not sure what your next steps should be?
Or maybe you and your partner have had some conversation about what to do next, and you’re unsure whether the conversations are heading in the right direction?
Maybe you are booked in for mediation, but you’re not sure how to approach those conversations?
Maybe you just don’t know where to start.
Let me help you.
In this article, I will talk briefly about how property is divided after separation. By the end of this page, you will have some practical things you can do to help bring some clarity for your decisions and discussions, and your next steps.
There is no one-size-fits-all answer about how to divide the things you and your partner own and owe.
When it comes to working out how your assets, liabilities and superannuation should be divided, there is a four-step process that all family lawyers will follow:
What do you own and owe?
The starting point is to understand the assets, liabilities and superannuation you and your partner have right now. The current value of each of those things will be the starting point. The most straightforward way to identify these things is to write a list.
How did you come to own those things?
Generally, there are three main types of contributions. The first is financial contributions, which usually come from income and other financial sources like inheritances, gifts etc. The second is non-financial contributions which are things which increase the value of the assets you hold – the most common example is renovating a house (but it is not the only example). The third contribution is as parent or home-maker. The timing of contributions in each of these categories may impact how we look at them – for example, what you each had at the start of your relationship, what contributions were made during your relationship, and perhaps any contributions made after separation. One of the best ways to record contributions is to write a time-line of your life (a chronology), and insert dates and details about significant events. For example, the dates you and your partner were born, starting living together, got married, separated.. and then all the things in between, like children, buying/selling houses, changing jobs etc.
What do you both need in the future?
This is the step where we consider a number of factors to try and predict what you and your partner may need in the future, based – to an extent – on information from your past. The sorts of things we look at include: your ages and health; your children – their ages, needs, health and care arrangements; your income and your partner’s income; whether child support is being paid; whether there are any financial resources either of you can rely on in the future, and a number of other factors too.
What does the practical reality of any outcome look like, is it appropriate?
Once we have identified the assets, analysed the contributions and considered whether there are any other factors that are relevant, we look at the outcome to make sure it is “just and equitable”.
What is “fair” in family law?
What I hope you notice is there is no reference to “fair”. That’s because the law doesn’t talk about “fair”.
And, because every relationship is different, the Court must ultimately be satisfied the outcome is appropriate, at law.
The weight given to any and all of the factors above is discretionary. It is very likely that if you took your set of circumstances to three or four different lawyers, you would end up with three or four different answers. Each of these answers may be “right” so far as the law is concerned. I appreciate that may be confusing. However it is why lawyers will usually, after gathering, analysing and understanding the information above, talk about a range of appropriate outcomes, rather than one, precise and specific outcome as being appropriate.
It is entirely possible that reading this list has made you feel even more confused about your circumstances and what an appropriate outcome might be in your circumstances.
I can tell you, you are not alone.
It may also make you realise this is an area of your separation where you do need to speak with a family lawyer before you make any big decisions or agreements.
In my experience, one of the reasons people are reluctant to approach a lawyer is because it can feel like you are betraying your spouse by getting legal advice, particularly if you have agreed to having an amicable and respectful separation. I can tell you that you don’t need to compromise the commitment to remaining amicable just because you feel like you want to get advice about the property stuff.
You are not betraying anyone by getting legal advice.
I can also tell you that getting advice so that you can make fully informed decisions may well promote that ongoing cooperative relationship, and possibly will make the process less complicated.
It will likely help you feel more confident about your options and understand your financial circumstances as you and your partner arrange mediation.
You will know that the decisions you are making, are the right decisions for you.
The interesting thing is, that quite often, taking advice early, strategic advice, planning advice, or simply getting information to understand the process – at any stage of your separation – can be one of factors that helps you focus on achieving a respectful, amicable separation.
Sometimes it takes speaking to a family lawyer, who does
this kind of thing daily, to bring some clarity over your options and next steps,
and can leave you feeling confident in the decisions you are making, and discussions
you are having, or planning to have.
In my experience, the times that people come to me for
- Before they “officially” separate, but after
months (and perhaps, years) of contemplating separation and unsure what that means
for them financially, or even what the best way to approach the discussion;
- After separation, and before negotiations start
with their spouse so they know whether they are being reasonable, and appropriate,
with their proposals;
- After separation but before going to family
dispute resolution (mediation); or
- After separation, and once an agreement is made,
to make sure the agreement is appropriate in all the circumstances.
If you are unsure about any aspect of your property settlement, agreement or the process generally, it is completely appropriate for you to ask for advice.
Your “future self” will have the peace of mind to know that your decisions were made, fully-informed about your options and the pathways available. And you can be confident you made the best decisions for you.
Please keep in mind that I cannot tell you, without having met you, gathered lots of information, understood more about your family, your values and your goals, what the likely outcome of your property settlement might be. However, a good place for us to start is a short conversation to understand your immediate concerns, what you have tried and perhaps I can make some suggestions for your next steps.
Megan Sweetlove is a divorce lawyer and the owner of Sweetlove Family Law. Megan has worked with families who are experiencing separation and divorce for over 10 years. She is passionate about helping separating couples improve the way they communicate so they can successfully resolve their conflict and rebuild their relationship to be the best thing for their children.
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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