The 8 keys to a positive Family Law Property Division
If you are considering separating, or have just separated, I have summarised, in no particular order, the 8 most important things you can do to ensure the best outcome when it comes to division of your assets and liabilities with your former partner…
1. Understand the Emotional Journey
Often in relationships, one party has “checked out” emotionally months, or sometimes years, before the other party even realises that there is a problem. Sometimes one party wants to separate and the other does not.
In such situations, where the parties are at disparate levels of emotional readiness to deal with the separation, getting the party who has not “caught up” emotionally to the negotiating table for meaningful discussion can be a challenge. That party may not be ready to admit that the relationship is over, much less decide how their property is going to be divided.
If you understand where you and your former partner are currently situated on this emotional spectrum, you will be better prepared to understand and deal with the reactions of each of you to the process.
In these situations, therapists, counsellors and support groups can play a huge role in assisting someone involved in a separation to deal with their sense of loss and their ability to move on from their relationship. This in turn makes negotiating amicably and reasonably a much more likely scenario.
We encourage our clients to lean on their natural support systems in these times for strength and encouragement.
2. Communicate with your former Partner
With good communication, the prospect of reaching a sensible resolution with your former partner is maximised.
Use your best endeavours to maintain respectful and positive communications with your former partner about the financial issues.
3. Come up with a draft proposal
Don’t be afraid to come up with some preliminary proposal with your former partner. You can’t commit yourself by any such discussion as it is unenforceable until you’ve gone through it with your lawyer and it is approved by the Court.
Any draft proposal is a good start to the negotiation process. An agreement can cover whatever financial issues matter to you both, and can include:
- the sale or transfer of the house,
- splitting superannuation,
- the amount one of you will have to pay the other.
- division of bank accounts, cars, contents of the house, etc
You will need to compile some basic information for your lawyer, and you should do that in advance of any meeting with that lawyer in order to reduce your legal costs and to help your lawyer resolve the matter.
Prepare a list of all the assets and liabilities (including superannuation) held by you and your former partner at the time you commenced living together. Include their values at that time.
Prepare a balance sheet listing all the major assets and liabilities (including superannuation) currently owned by you and your former partner, and include your estimate of the value of each item.
Compile the following documents for your lawyer:
- Your last three tax returns;
- Your most recent pay slip;
- Your most recent superannuation statement;
- Your most recent statement for any account (savings, credit card, loan, mortgage, term deposit) with any financial institution;
- A market appraisal from a real estate agent for any real estate you own
Prepare a chronology with the dates of:
- birth of you, your former partner and your children;
- your marriage, commencement of your cohabitation and your separation;
- purchase and sale of any properties during the relationship, including the prices;
- any inheritances or gifts you, or your former partner, received during the relationship, including the amounts.
5. Don’t Take Legal Advice from your Former Partner
Don’t believe your partner when he/she tells you:
- “I know what you are entitled to and my offer is very reasonable” or
- “My lawyer has told me what the outcome of any court case will be and I am offering you more than you would get in court” or
- “Unless you accept what I am offering, you will waste all the money on lawyers.”
Usually, your former partner will not be giving you advice with your best interests in mind. Notwithstanding how obvious that may seem, It is surprising how many people I see who are worried by what their former partner has told them about their entitlements.
6. Take Legal Advice from an experienced Family Court lawyer
Don’t assume that speaking to an experienced Family lawyer will result in an escalation of a property dispute.
A good Family lawyer will guide you through the complexities of what, for most people, is a novel and unknown journey. That Family lawyer can explain the process and your entitlements.
Legal proceedings are always only a last resort. A good Family lawyer will explain all the other available options and will provide you with a strong reality check, to balance all the subjective and often, incorrect, legal advice you receive from well-meaning family, friends and neighbours.
7. Alternate Dispute Resolution
Consider other methods of resolving the dispute such as mediation, arbitration or informal settlement discussions through lawyers.
Understand that resolutions are only ever reached where two people compromise their respective claims. So be prepared to compromise.
If you can deal effectively with the matters in this checklist, you will greatly increase the prospects of resolving your property issues at an early point in negotiations.
Matthew Coates, Partner
Family Law and Estate Law teams
Watkins Tapsell Solicitors