A Comprehensive Guide to Divorce and Separation
Our family law team has written this all-inclusive guide to separation and divorce, outlining all the details you need to know.
Making the decision to separate from your partner can be extremely daunting and confusing. What follows once you make the decision to separate can be traumatising for many people, and a walk in the park for others. No matter how rocky the road, the ultimate destination for most people is the same – separating assets and debts to achieve financial independence, and getting good routines in place for happy children and happy parents.
This blog is the first in a three part series intended to assist you with understanding the process involved in separating and how you can greatly improve your chances of getting through it without spending an arm and a leg or losing your sanity.
So you’ve decided to separate, what now?
1. Set the date
Whether you are married or separating from a de facto relationship, the date of separation will be relevant. Separation occurs when one party clearly communicates to the other person that the relationship is over, and from that point the parties live “separately”, either in different houses or separated under the same roof (separate beds, separate social lives, separate responsibilities – an identifiable change from the shared domestic relationship when you were together). If you think that there is any uncertainty or the other party isn’t clearly understanding that the relationship is over, confirm your wish to separate in writing. A text or email is sufficient.
2. Get your papers in order
Start to organise any documents that you have relating to your own financial circumstances, including tax documents, payslips, bank/loan statements, superannuation statements, and any other documents that relate to any assets that you own, or debts that you owe. Whether or not you are able to settle things amicably by agreement, it is likely that you will need to refer to at least some of these documents in finalising your property settlement and when that time comes you will thank yourself for having things organised in a way that helps you to find what you need quickly and easily. Locate, and keep safe, your marriage certificate, children’s birth certificates and other important identification documents.
3. Keep it classy
Although right now you might feel like unleashing the fury on in an email, on facebook or an SMS message to your ex, this could have serious consequences for you in the future. Not only that, but it is certain to make things more difficult when you try to negotiate arrangements for the children or deal with assets/debts. Be respectful. Be courteous. Be mindful of the impact that the conflict between you and your ex will have on your children, mutual friends, and your own reputation. When you go to text your ex or send an email, think to yourself first “Would I want a Judge to read this?”
4. Make an appointment to see a lawyer
The sooner, the better. Getting advice from someone who is experienced in Family Law at the earliest opportunity will help you to save money in the long run. Every second person you talk to will have their own opinions about what you should receive from your property settlement or what your rights are when it comes to your kids, but now is not the time for you to rely on second-hand advice. While your lawyer might not be able to answer every one of your questions at your initial appointment or give you specific advice about what the outcome will be, at least you can go away from that meeting with a good idea about the further “homework” that you might need to be doing to make any further appointments more useful. Prepare yourself before you meet your lawyer for the first time, take relevant documentation and be honest with your lawyer about your circumstances and what advice is most important for you at that initial appointment. There will be a lot to take in, so you might also consider taking a friend to the appointment, or a pen and paper so that you can keep notes of the most important points as you go.
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5. Close joint accounts
Of course, there will be some accounts that may need to remain in joint names, for instance your home loan or loan servicing account, but there is no reason for 100% of your pay to keep going into that account. Make sure that you are maintaining a fair contribution to any home loan repayment or joint liabilities, but otherwise ensure that the balance of your income is going into your own separate account that your ex cannot access. Check that direct debits are being taken from the correct accounts. While you might have been happy to pay off your husband’s personal credit card from your bank account by direct payment initially, this might not suit you now that you have separated.
6. Get smart
Inform yourself about Family Law matters. The Family Law Courts website has a number of publications that provide information with respect to divorce, children’s issues, property settlement and spousal maintenance. Start to familiarise yourself with the terminology and what different Family Law matters you might need to consider in your specific circumstances. “Have I been separated long enough to divorce? Is there a time limit before I can start property settlement proceedings? How do I apply for child support? What is a parenting plan? Do I have to go to mediation?” Be wary of informal chat groups, but you can find a lot of these answers yourself with some quick research on reliable websites.
7. Lock up
Change your passwords to remain in control of your emails, text messages, and anything else that you have stored electronically. Change passwords to your internet banking, Facebook and other social media. Make sure that any joint email accounts are closed and that your personal mail is redirected. Insofar as your personal items at home are concerned, lock up your valuables and personal documentation or take them and store them elsewhere – it might even be a box under your desk at work or in your best friend’s cupboard. Make sure that you are not takings things that do not belong to you, but look after the things that do.
8. Sort out your beneficiaries
We all have an expiry date. If you pass away prior to the finalisation of your property settlement matter, then you need to be confident that your estate will be distributed in accordance with your wishes. Get in touch with your superannuation fund and remove your ex as beneficiary. Seek advice from a lawyer experienced in estate matters so that your Will can properly refer to the fact that you have now separated from your husband/wife/spouse.
9. Don’t sweat the small stuff
Remember what is most important. A few dollars here, half an hour with the kids there, who paid for the holiday to Bali, all these things might seem incredibly important in the midst of a separation but be guided by your lawyer in this regard. It is easy for legal fees to build up quickly, and your lawyer will help you to focus on what is most important in your matter at the outset.
10. Get support
Do not ever underestimate the value of your own mental health. Separation can be an incredibly stressful time. Call on friends and family to provide support and help when you need it. Try not to involve them in your battles, but let your loved ones know how much their lending a shoulder to cry on is appreciated. Beyond Blue, Lifeline and other free services are available. Talk to your GP about a Mental Health Plan if it’s all getting a bit tough to take.
So … then what?
Child arrangements, property settlements and other practicalities of divorce and separation.
When you arrive at your first appointment with a lawyer it can save you a lot of money and time if you have some idea about the matters that may require legal assistance. Ideally you and your ex will reach agreement quickly dealing with financial and non-financial matters and your meeting with your lawyer will be to discuss how that agreement can be formalised. If not, your lawyer can help you to determine which issues are relevant to your circumstances and the priority to give each of them.
1. How do I get a Divorce?
You will often hear people talking about the fact that they are “getting a divorce” or “going through a divorce”. It is a common misconception that the word “Divorce” covers all the financial and non-financial issues to be dealt with when you separate from your husband or wife. This isn’t the case at all. Strictly speaking, divorce is nothing more than formalising the end of the marriage. When you marry you receive a Marriage Certificate and you are married until you obtain a Divorce Order. Many people separate, and then reach agreement and/or obtain Court orders for financial or children’s issues and then go many years without obtaining a divorce. The reality is, for many people obtaining a Divorce Order isn’t a top priority, but a “box to be ticked” somewhere down the track, for instance if they wish to remarry.
You can’t apply for a Divorce Order until you have been separated for at least 12 months and other criteria are met. You can be “separated under the same roof” however this means that you and your husband or wife will each need to prepare an affidavit setting out the change in the relationship domestically, financially, romantically and socially after the decision was made to separate. In the case of a marriage of less than two years, you may be required to first show evidence of attendance at counseling. There is a filing fee associated with the Application for Divorce and the Application can be made either jointly or individually. While filling out the Application for Divorce form can be relatively simple, often help from a lawyer is recommended especially in the case of a short marriage, where there has been a period of separation under the same roof, where there are children of the marriage and where property settlement Orders have not yet been made. A lawyer will also help you to ensure that the rules of service of the divorce application are met prior to the Divorce hearing.
2. What do we do about the children?
After separation, arrangements for the care of children need to be made, and the sooner the better. Every child is different and there is no black and white rule about who children should live with. The paramount consideration made by the Court is what is in the “best interests of the child”. It might be in the best interests of the child to live more with mum, or more with dad, or to live with both parents on a shared basis.
When you and the other parent are discussing the arrangements for the children it is so important to remain child focused, and always respectful towards each other, not only when you are communicating with the other parent but also when you are talking about the other parent in front of the child or children.
Family Relationship Centres, Centacare and Relationships Australia provide mediation services and it is a requirement of the Court (except in certain circumstances e.g. urgency or where there is family violence) that prior to issuing Court proceedings parents attend at mediation and attempt to reach agreement. If agreement cannot be reached at mediation then a certificate must be obtained from the service provider to provide to the Court when starting proceedings. Agreement reached in relation to children’s issues can be recorded in a parenting plan, or parenting orders. You should discuss with your lawyer whether a parenting plan or parenting orders are more appropriate in your specific circumstances. If you cannot reach agreement with respect to children’s issues either yourself or with the assistance of a mediator or lawyers, then Court proceedings can be issued. This should be considered as a last resort for the sake of both the parents and the children.
3. Do I need to apply for Child Support?
Child Support is assessed by the Child Support Agency using specific formulae relating to each party’s income, the age/s of the child or children and the time that the children spend with each party. If the children are living with you most of the time and the other party is not providing adequate financial support, then you should contact the Child Support Agency and make an application for a Child Support assessment. If you do not agree with the assessment then you can ask the Child Support Agency to review their decision. If you and the other party reach a private agreement about the payment of Child Support then this can be recorded in a Child Support Agreement (limited or binding). Child Support is payable until the child reaches the age of 18 and until the conclusion of the schooling year in which the child turns 18 years of age. Check out the Child Support Agency website which is very informative, and their helpline can also offer assistance.
4. Do I need to get a Property Settlement?
Many people think that property settlement is only to do with real estate owned by the parties. This is not the case. Many people do not own real estate but own many other assets or owe significant debt that needs to be divided between the parties when they separate.
Many people think that you have to be divorced to be able to apply for a property settlement – this is not the case.
Property Settlement Applications can be made during separation, and within one year of becoming divorced and they can be made after the end of a de facto relationship. Any agreement in relation to property settlement, or decision made by a Court, will need to deal with all assets and liabilities held jointly by the parties, in each party’s individual names, or held jointly with third parties. This includes real estate, cars, savings in bank accounts, credit card debts, furniture and effects, interests in trusts, company/business interests, shares, employment entitlements and tax among other things. Pets can also be dealt with in the same way as items of property.
It is important to understand that if you reach an agreement with your ex about the division of property between you, that agreement is not final unless it is formalised by a Binding Financial Agreement or Consent Orders of the Family Court (more here). Obtaining advice from a lawyer as early as possible after separation can make a significant difference to the property settlement you receive. If you cannot reach agreement between you, then you are entitled to apply to the Family Law Courts for a division of property. Time limits apply.
5. Am I entitled to Spousal Maintenance?
In addition to dividing assets and debts between the parties, agreement can be reached or orders made for one party to pay “spousal maintenance” to the other party. This is intended to help a party along financially after separation where their income or earning potential is significantly less than the other party’s. A classic example of this is a wealthy professional husband, who still works, being in a much better financial position “week to week” immediately following separation than the wife who raised the children, attended to domestic duties and supported the husband but gave up her career during the relationship and has little or no income at separation. To be successful in an Application for spousal maintenance it is not only necessary to prove that you have a financial need, but that the other party has the capacity to pay spousal maintenance to you. When you talk to your lawyer about property settlement matters you should also make sure that you discuss spousal maintenance and whether this should be considered in your particular circumstances.
After the Storm
After negotiations have finalised and agreement has been reached, or Court orders have been made, with any luck you can tie a big red bow around your box of Family Law documents and move forward with a smile on your face.
But before you do, once the formalities have been met it is worthwhile spending time checking that you have ticked all the boxes and also being aware of how to deal with problems that may arise thereafter.
1. Revisit your checklist
It might be that you decided initially that it was not a priority to obtain a divorce order, and that you wanted to focus on children’s issues or financial matters. Once children’s issues and/or financial matters have been formalised it might make sense to make an Application for Divorce, either jointly with your ex or in your sole name, to make formal the end of the marriage. The Family Court’s website provides a useful “Application for Divorce kit”. If you get stuck, or if you’d rather spend your time doing something else, of course contact a lawyer for assistance.
2. What do I do if my ex breaches Court orders relating to our children?
There are many reasons why a parent may decide to breach orders with respect to children’s issues, and in some situations a breach of Court orders could be considered reasonable by the Courts in order to ensure the safety of the children.
In the first instance, if the other parent breaches orders a good first step might be to contact them yourself and ask that they comply with the orders. There might be a simple explanation or a reason why you both need to accommodate a change for the benefit of the child/children. Make sure that any communication with the other parent is respectful and courteous and keep in mind that if the matter returns to Court then any text messages or emails or communications between you and your ex could be included in any Affidavit in support of their case. Communicating in writing as well as by phone is a good idea so that there is a written record of your request.
If your ex refuses to return the children to you in accordance with orders made you should seek advice from the lawyer at the earliest opportunity. If you believe that the children are at risk of harm in the other person’s care, you should contact the police immediately to assist you.
3. Complying with Property Settlement Orders
As with children’s orders, both you and your ex must comply with final orders made for property settlement and do all things required of you as set out in the orders. Most consent orders, or orders after a Trial, will provide that a Registrar of the Court can sign off on transfer documents etc on behalf of the parties if either party fails to do so.
Make sure that you read through the orders carefully when you receive them in final form from your lawyer or from the Court, and note all time limits that apply. Often interest can accrue or other penalties apply if the orders are not complied within the time periods set. Keep proof of your compliance with the orders or your attempt to comply with the orders so that if there are delays that are out of your control, then you can provide this information to your lawyer or to the other party.
When you update your Will you should provide a copy of the final orders for property settlement to your lawyer so that a copy can be kept with your Will file. It is also important to make sure that you contact your superannuation fund and review your nominated beneficiary if you haven’t already done so.
4. Spousal Maintenance
As with divorce, spousal maintenance may have been initially “put to one side” while you focused on children’s issues or property settlement – if you have not already finalised spousal maintenance at the time of finalising your property settlement, you might wish to discuss with your lawyer whether you are likely to be entitled to or possibly ordered to pay, any spousal maintenance. It may be that you are not likely to have any entitlement at present but your lawyer will be able to explain to you what is taken into account when considering spousal maintenance so that if your circumstances change at some point in the future you are aware that an application for spousal maintenance may be considered appropriate.
5. What do I need to keep?
A good idea is to keep a copy of your Court orders accessible at all times, you might wish to email it to yourself if you go on holidays or otherwise leave it with a friend or family member who can forward it to you if required. Provide a copy of your children’s Court orders to the school, day care or other third parties involve with the care of the child/children so that they are aware of handover arrangements.
Make sure that you keep your Family Court documents, including Court documents and correspondence from your lawyer in a safe place for the immediate future. If you don’t have the space or don’t wish to keep everything, at the very least keep a copy of each of your Court documents and a copy of all final orders made, including an electronic copy of final orders emailed to yourself for a future reference if needed. Your lawyer has an obligation to hold on to your file for a period of seven years, but after that time it is likely to be destroyed. Some lawyers charge a retrieval fee in circumstances where your file is kept offsite at a storage facility, and most lawyers will charge a photocopy fee if you require copies of documents after your matter has finalised. You may not ever have to refer to any of your Family Law documents again, but in the event that you do then you would be grateful that you kept copies when and if that time comes.
So then what?
Well, that’s up to you. You might have learnt things from your family law matter that mean you organise your paperwork or keep better records in the future “just in case”. You might conduct yourself differently or take a new approach to communication with your ex or new partner to avoid new disputes in the future. You might decide that you’ll look into a “pre-nup” style agreement (now called a “Binding Financial Agreement”) prior to moving in with the next partner or marrying again. You might decide that relationship breakdowns are far too difficult and you prefer your own company!
Whatever your future holds, if you are faced with another family law dispute in the future the benefits of obtaining good legal advice from the outset cannot be underestimated.
Need family law advice? Contact your local TGB office, or register for an appointment online here. TGB is a leading Australian family and divorce law firm.