As experienced family lawyers in Adelaide, we sincerely understand that divorce is one of the toughest and the most sentimental decisions that a couple may have made. Though it can be a single-party or a mutual agreement, the separation process is always challenging because of potential disputes. Might you feel overwhelmed by so many upcoming changes in your life, let the following preparation tips release your pressure and bring back optimism.
Brainstorm ideal arrangements for your children and properties settlement to keep you on track
Before discussing your spouse about a divorce decision, it will be useful to plan about your desired resolutions: how to inform your children and handle shared parenting responsibilities, where you would like to live – in the current house or moving out, how marital assets, finance resource flow-in and flow-out are shared. The more detailed you depict the picture of your divorce, the more likely you are going to reach your goal in a tranquil manner.
Australian divorce follows the principle of no-fault divorce established by the Family Law Act 1975, which means that a court takes no considerations for the reason behind your marriage breakdown. They acknowledge the unlikelihood of a repair in your relationship to decide divorce. Therefore, the divorce process involves two separating processes: separation and divorce, and property settlement.
Separation and divorce
This process is the conclusion relating to the legal status of your relationship. You and your spouse must be in separation status for at least 12 months before you can file to the court to finish your divorce. Normally, if your divorce does not include property or children matters, the divorce process should be easy and simple.
On the other hand, if a divorce includes the property or children matters, the property settlement will be a part of your divorce and be a different process. Some key points you should know are as follows:
- You can complete property settlement before getting a divorce, but once you have divorced, you have 12 months to file an Initiating Application in the Family Court or the Federal Circuit Court of Australia if you and your partner cannot agree on the property settlement.
- If you are in separation but not file for divorce, you are not required to follow property settlement but you are recommended to in case you later come into other assets such as buying a house, winning lottery or receiving an inheritance. If you have not completed property settlement, these assets may not be protected. If you want to follow property settlement without divorce, you will have 24 months to file to the court.
- The divorce can still be processed without having completed the property settlement. If there are children under 18 or your partner who will suffer financial hardship if property settlement does not occur, the Court will make sure there are arrangements in place for their care though.
Under the Family Law Act 1975, the couples have to be in separation status for at least 12 months before they can apply for completely divorce
Prepare for your property settlement
You can reach the final property settlement of your divorce or separation by various alternatives without going to court. Basically, your options include contested or uncontested property settlement
Uncontested property settlement: This is the most ideal option in which both partners reach an agreement of all related arrangements of key issues such as parenting responsibilities, property settlement before filing divorce to the court together without conflicting.
Contested property settlement: This is the divorce in which family lawyers are involved to support irreconcilable disagreements. With the participation of the third parties, you are open to the four types of contested property settlement as following:
- Mediated property settlement: When family talks may turn out stuck arguments, a qualified lawyer with strong mediation skills is hired to guide disputes to acceptable outcomes. Both parties will effectively cooperate under the mediator’s guidance to reach final agreements out of the courtroom.
- Collaborative property settlement: If you wish for a representative to help you achieve final negotiated resolution in a respectful and productive practice, a family lawyer of each party will pay attention to resolving the issues, navigating the complicated property settlement process, or other family disputes for reasonable benefits. Eventually, it preserves relationships beyond divorce.
- Litigated property settlement – The court is involved when you and your spouse are unable to reach an agreement through other channels. You will submit your issues to the family court to ask for just and equitable resolutions. There will involve your separating family lawyer to defend for your side in front of court and the judge will give the final decision of your outcomes.
What you need to prepare for your property settlement
There are piles of documents required to deal with property settlement as well as other resolutions. To speed up the progress and save your legal fee, you can definitely do significant support by having all financial paperwork ready physically and digitally, which includes:
- Inheritance and gifts; any other items of value (e.g. air miles)
- Property, real estate asset
- Vehicles: cars, boats,…
- Collections of art, wine or jewelry
- Life insurance policies
- Finance & investment assets: Bank accounts; Savings; Stocks, shares, and other investments (timeshares, etc..)
- Retirement accounts;
- Business assets, if applicable
- Kind notes:
- With all the key items noted down in each category, go through them one by one and try to evaluate their value if you can to prepare better for the future disclosure.
- Don’t try to hide something away, transparency does not lead to a better value. In case you are not clear about the status of any asset (ownership and expected value,,,), highlight it, and consult your family lawyer to acquire the best solution. Parties are required to make full and frank disclosure.
- South Australia’s family law distributes properties related to your marriage equally for both parties, therefore, you need to well-acknowledge of assets constituting and its value.
- Assets that you brought into the marriage may not be required to divide the value but if it is used to generate income and increase value during the marriage, its appreciation is sometimes required to be shared.
At the property settlement in a divorce case, both parties are required by law to make full and frank disclosure about their assets.
Financially prepared for legal fees
Divorce and property matters are not something you can get for free. Though you might want to handle it yourself, make sure you have a certain amount to cover lawyer and other legal fees in case you can’t negotiate with your spouse by uncontested property settlement. Moreover, taking into account such entailing expenses as resettlement to a new home, property taxes,…a saving habit is an amazing backup. The financial settlement you get back after the divorce may not be enough to compensate for your expenses, therefore, preparedness will prevent the possibility of ending up in a bad financial situation.
Questiones before talking with your partner and family lawyer
Thousands of questions can all at once clog in your mind when it comes to divorce.
With your partner, understanding their wishing outcome in advance will give you necessary navigation to possible divorce options, it is ideal if you can clarify the following items with your spouse:
- What does he or she want/expect in terms of parental arrangements?
- What will happen with child support?
- What are the expectations with spousal support?
- Who will remain living in the house (e.g. one of us, both of us)?
Although family lawyers will conduct an initial case evaluation with provided information before the actual contract, proactive research and will deliver better support for your final decision. You can consider the following questions:
- Does your firm practice only family law cases?
- How will the property settlement be costed?
- How many cases have you represented that are similar to mine?
- How will we communicate during the divorce process?
- Will you present the court with me?
Are you looking for a dedicated companion through your stressful divorce?
Our lawyers at Dev Smith Nguyen are well-conscious that you need more than a legal supporter to help you achieve the most winning outcome of the divorce but also a listener, a friend. No one expects unsolvable family issues, not to mention a separation, let experienced divorce lawyers walk you through this distressing period to reach many better days ahead.