7 Ways to Survive a Divorce
1.Do not act in haste or in rage – you may regret it later
- payback actions such as damage to property or waste of funds using credit cards and other vindictive acts may cost you money -coming out of your share of settlement
-there may be penalties involved in if you commit a fraud or destroy or hide documents or assets
-if the matter goes to court the procedure of using subpoenas against third parties including your employer and bank, may uncover your actions anyway
-hiding assets under another person’s name can in a lot of cases be uncovered and will heavily penalise the spouse who has deliberately not made disclosure of all assets
2.Make sure you get proper advice from an experienced family law solicitor before you start making plans and also consider alternative dispute resolution
-this is essential for getting the proper advice about your entitlement and what action to take
-check their website and other places for information about the law firm you are going to make an appointment with
-check with the Law Institute to ensure that your lawyer is qualified and sufficiently experienced
-in most cases you will need to try to mediate or negotiate in some form regarding any disputes over children, before you are permitted to take the matter to court (there are exceptions however where there is urgency or violence)
3.Collect your papers
- record keeping is must for property settlements, including your spouse’s bank accounts in case you need to check what has been spent by him or her over the last year or more
-tax returns
-evidence of loans
-superannuation statements
-contracts to purchase property
-emails and letters and other written evidence of gifts and agreements to repay
4.Get assets valued
-with real estate, most agents are happy to prepare a market appraisal regarding the value of your home, without charge or obligation.
5.Get payout figures on debts
-current mortgage statement
-payout on hire purchase or lease on a car usually involves a call to the finance company
6.Write out a history of contributions you have made to support the basis for your entitlement
-these should include your income history from employment and any gifts from family
- home maker and parenting contributions count as well towards entitlement
7.Do not assume that your entitlement is the same as your separated friend whose case “sounds the same” as yours
-the worst thing you can do is act on advice from a friend (even with good intentions) who has “been through the same thing” and later find out there were critical things you had to do to ensure the assets were preserved or that you got your full entitlement but did not do them because your friend didn’t have to or if they did, they didn’t mention what their lawyer did for them.
-a lot of variation on property entitlements between seemingly similar cases exists, due to the difference of section 75(2) factors, including number and age of dependent children, health, age, income, financial resources and receipt of Centrelink.
-do not get others to complete legal documents for you if not legally qualified- it’s not worth it.
To claim your obligation free family law consult for up to half an hour please telephone (03) 8742 3199 to make an appointment or email us at info@rigolilawyers.com.au
PROTECT YOUR ASSETS AFTER SEPARATION
There are 2 main aspects to protecting your assets after separating from your spouse.
Firstly, there are actions to take to preserve property, to ensure that it is not dissipated, de valued or alienated (disappearing or transferred to others outside the marriage) or lost forever. Examples of such protections are:
- caveats over land which is owned by only one of the spouses to avoid a sale or refinance without the other's knowledge or control
- notifications to banks both informal and formal to freeze further advances on loans and mortgages
- court injunctions against a spouse or a company they control to do or not to do something which affects the assets of the marriage
Secondly there are agreements and court orders which can be made to ensure that any division of property is final and there is no "come back". These include consent orders, orders of the court and binding financial agreements. If you can reach agreement with your spouse even without the help of lawyers, it is really important to have that agreement formalised into a binding legal document.
What is a binding legal document? Requirements are different from country to country but in Australia to make a property settlement agreement binding and avoid any "come back" or "second go", it really has to be in a form that complies with the legislation and rules. Generally it would be in the form of consent orders (agreement approved by the court) or it can be in the form of a binding financial agreement (agreement signed by both parties after they have receive independent legal advice from their own lawyer and each lawyer has also provided a signed certificate to confirm that they have indeed given legal advice to their client about the advantages and disadvantages of their client signing and entering into the binding financial agreement.
What's better- consent orders or binding financial agreement? Depending on the lawyer drafting the agreement and their fee structure, you may find that consent orders will be charged out at a higher rate than the drafting of a binding financial agreement for the same set of facts and terms of agreement, however fees vary from lawyer to lawyer and it is best to get either a fixed quote or estimated range of fees and compare. Some separated couples they may wish their agreement to be not seen by any court or made public and therefore prefer to go with a private binding financial agreement. For other couples, when one of them refuses to get independent legal advice and just wants the agreement signed up and made legal, they would go for the consent orders option (in which case the court can still not grant approval if in the court's opinion the unrepresented party is on the face of it getting far from a fair outcome).
A binding financial agreement cannot deal with agreed children/parenting arrangements. There are a lot of other differences between the two types of written agreements and for specific advantages and disadvantages applicable to each case it is best to get legal advice after explaining one's particular situation. In my practice I find that binding financial agreements are becoming far more popular than consent orders these days when parties have only property issues to resolve.
To claim your free legal consult for any new family law enquiry, simply email your request for an appointment to info@rigolilawyers.com.au or telephone Rigoli Lawyers on (03) 8742 3199.
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