Most married couples don’t expect to divorce, let alone have the prudence to plan for it.
Whilst we’ve seen a recent drop in the Australian divorce rate, the statistics show that one in three marriages still don’t last.
So, what happens when “I Do” becomes “To Do”?
Every divorce and separation is different given the family structure and circumstances of each marriage are varied.
But the common thread in every divorce is that there are many people to think about and many things to do. Property, assets, parenting arrangements, finances, day-to-day needs etc.
To make sure all these things are properly and fairly considered, it’s worthwhile enlisting the guidance of an experienced and compassionate family lawyer to help you through the divorce and separation process.
Here are three matters you should be prepared to discuss with your family lawyer:
1. Property and Division of Assets
Once your marriage ends, the discussion soon turns to the details of your property and working out the division of your assets.
Determining who gets what isn’t always cut and dry and can be a stressful process.
When you meet with your lawyer, there are some important steps to go through to help you reach a just and fair division of property:
- Firstly, you must disclose all assets, financial resources, and liabilities of both parties to work out the total current asset pool.
- Your family lawyer will then help to evaluate contributions of the asset pool, both financial and non-financial, in percentage terms. Financial contributions include the value of assets each party brought into the relationship when they started living together and continued to make throughout the relationship, such as gifts, inheritance, compensation, and redundancy. Whereas, non-financial contributions include those made towards a business and the home, such as home maintenance and renovation or as a homemaker and parent.
- Your future financial needs are then assessed based on several factors of each party. These include your respective age, health, and earning capacity, the responsibilities and care of children and the financial circumstances that relate to parties who have entered another relationship.
Sharing this information with your lawyer will help to resolve property settlement and division of asset matters fairly.
2. Parenting Arrangements
Divorce is seldom just about the couple. The decisions relating to parenting must always be in the best interests of the children.
Good information, well-prepared documents, and legal representation is vital in resolving parenting arrangements and court proceedings.
Parents know their children and are often best placed to work out the appropriate arrangements for their children’s welfare, ideally without involving the courts.
But it’s essential that parents understand the law relating to children’s matters.
You should be prepared to discuss the following things with your family lawyer:
- financial support for your children
- custody of your children
- the physical and mental well-being of each parent
- the child’s relationship with either parent
- the home environment
- the level of communication and collaboration between the parents
- the distance between each home and school
- the parents’ work commitments
- the needs of the children
If parents face problems they are encouraged to attend Family Dispute Resolution, which is a mediation process that usually takes place at Family Relationships Centres or in private sessions.
Family lawyers and other experts can assist in this resolution process.
3. Spousal Maintenance
Spousal maintenance is different to child support. It is the right of a person following a divorce or separation from a de facto relationship to seek financial assistance with their ongoing living expenses from their former partner.
While it can be a valuable right, it’s also one of the most contentious divorce matters.
In our legal system, these entitlements are quite rare and generally for small amounts payable for short periods of time. However, this is not always the case.
It is up to the court to determine whether the spouse seeking spousal maintenance is entitled or if the other spouse is required to pay it. They determine this based on several factors, including:
- The financial position of the spouse seeking support, such as their income, expenses, assets, and liabilities.
- The spouse’s ability to earn an income and support themselves, and whether they are using their ability to earn to its full extent.
- The financial arrangement between the spouse seeking support and a new partner, in the event the spouse enters a new relationship.
When meeting with your lawyer, regardless of whether you are the spouse seeking support or the spouse being ordered to pay it, be ready to discuss your financial needs, work aspirations and how spousal maintenance will positively or negatively impact your situation.
This way your lawyer is more able to help you reach the outcome you want.