10 Essential Steps To Prepare Properly For Divorce
by YJIL -

10 Essential Steps To Prepare Properly For Divorce

One issue that family lawyers often encounter is a client asking them for help with a divorce, but that client has done absolutely nothing to prepare for their divorce. When we say “prepare” we do not mean that the client has been planning for divorce behind their spouse’s back. Instead, we mean that the client has taken no steps to help themselves through the divorce process.

If you are still unsure what we mean by “prepare properly for divorce”, we have ten essential steps which we believe will help you understand further. Two points of note are that first, this applies to both divorces for married couples and when a de facto relationship ends. Second, the ten steps are not necessarily in chronological order, so the timing of each of them is your choice, other than the first one.

Decide And Then Accept Your Marriage/Relationship Is Over: Your first step is to decide and accept that your marriage or relationship is over. We do not suggest that you make this decision on a whim, but more that acceptance will help you move forward and deal with your divorce, whereas denial will not.

Property Settlements
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How Does The Family Law Court Decide Property Settlements?

One of the most common aspects of divorce that a divorce lawyer will be asked advice on is the property settlement. Some of the reasons it plays such a large part in a divorce are understandable, and some of the reasons, not so much.

Obviously, both parties to the divorce want to ensure that they are both treated fairly with regard to finances, especially if there are children to be provided for. The other reason is that if a financial settlement can be agreed between the couple with the help of legal advice from their lawyers, the need to go to court, and thus incur additional fees, is negated.

This kind of agreement is called an informal agreement and whilst they can be created without the need for lawyers, the strong advice is that a lawyer’s advice is sought, if no other reason to ensure that what you are agreeing to is fair.

The other reason you should still seek legal advice is that informal agreements cannot be enforced by a court, so you want the agreement to be as robust and equitable as possible.

The next step up from an informal agreement is a financial agreement, which is agreed between the couple, again with the help of their lawyers. This time though, the agreements presented to the court for approval. The court will assess it to make sure it is fair, before approving it.

With court approval, a financial agreement now becomes legally binding and therefore a far more formal and enforceable settlement. These are especially needed when aspects of the settlement include support payments for children or an ex-spouse, where they might want the reassurance that the payments are protected by legal means.

Enemy in a Divorce
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Snapchat, Twitter and Instagram May Be Your Worst Enemy in a Divorce

No one can argue that social media has permeated every aspect of our society.  Everyone from your youngest friend to your oldest relative communicates on one form of social media or another.  As of 2017 a huge 81% of people had a social media profile of one kind or another.  With numbers that huge it’s a safe assumption that the parties involved in a divorce will have one or even all of these types of accounts.  Experienced family lawyers will tell you the consequence is that documenting and presenting social media evidence is now a critical part of family law proceedings.

Ultimately, the statements on social media are often a doubled-edged sword:  they are typically emotional, sometimes rash.  One the one hand, social media is uniquely set up to be electronically preserved since it exists in a digital format already.  What is said, posted, or streamed on social media now becomes a prime opportunity to illustrate negative behavior about an opposing party.  Here’s an example: if one party claims that the other has a substance abuse issue, a Facebook album titled “Trashed Tuesdays” full of documented drunken exploits could certainly be useful evidence.

People are people, as the saying goes, and it’s often difficult, if not impossible, to get them to stop “knee-jerk” reactions to a baiting Facebook post, or to stop posting damaging or derogatory thoughts about the opposing party via social media.

Distributing Inherited Property
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Do you have to Share Inherited Property following Divorce?

Family Lawyers can help you Protect your Rightful Share

After marriage, it’s a common tendency to treat individual assets, including houses, cars, boats, jewellery etc as a shared pool of assets between partners. Contrary to popular belief, family lawyers suggest that inherited property does not automatically fall under the shared pool of assets. Each divorce is characterised by different circumstances and thus, each case is unique in its own way. Distribution of property in divorce cases, including inherited property, is decided according to the guidelines listed in the Family Law Act under Australian law.

In fact, keeping in mind the increasing rates of divorce in Australia, Online Legal Advisors have told us it’s important for couples to be aware of laws governing the distribution of inherited valuables, assets and property. Hence, it’s important for couples to understand how different factors play a role in deciding the distribution of inherited property in case of divorce.

  • The manner in which the Family Court will decide the distribution of inherited assets will depend to a large extent on the nature of the bequest. Some assets or property may be bequeathed to one partner while others may be bequeathed to both.
Family Lawyers
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How Family Lawyers Can Help You

You might consider family lawyers to be only necessary to help you through the bad things in life such as separation and divorce, but they are there to support you through many different kinds of happenings, many of which are very pleasant. When there are major changes in your life such as getting married or moving into a new home, your solicitors can help smooth the way.

  • Marriage- Once you get married you’ll need to change your Will, because the former one is no longer valid. If you’ve been divorced, your Will is no longer valid either, so you need to see a solicitor to have it changed.
  • New family – Once you have children, you’ll want to include them in your Will. Some people set up trust funds for their children to help with their education or to ensure they get a certain amount of money at a specific age.
estate-planning
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5 Estate Planning Steps to Consider Before Seeing the Lawyer

If you are considering estate planning to take care of your assets and divide them properly between your loved ones, experienced family lawyers will tell you to write down the information they need before you make an appointment with them. In this way they will have all the information to hand and can get on with the job, saving you both time and money.

So to that end, here is a list of steps you need to take to ensure you have everything covered.

  • Physical assets – these are house, car or any other vehicle you may own and any other asset worth over $100. This can include electronic devices, home theatre, camera, artwork, engagement rings, ornaments and expensive clothing such as a fur coat or your wedding dress.
  • Non-physical assets – these will include bank accounts and investments of all kinds. Include the names of the banks and account details as well as the companies you have shares with. It will also include such things as life insurance, other forms of insurance, annuities, pensions and superannuation. Make sure these are all updated with the nominated beneficiaries information still being current.
  • Liabilities – all the debt you owe should also be listed. This includes home loans, business debts, car loans and the balances on your credit cards, if any. You need to think about how you want such debts to be paid off in the event of your death. Add up your total debts so you can work out whether the sale of a specific asset would be enough to pay it all.
initiate-divorce-proceeding
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How to Initiate Divorce Proceedings

No matter which Australian state you live in, before you can start divorce proceedings you have to live apart from your spouse or partner for 12 months and one day. An experienced divorce lawyer like Robertson Hayles Divorce Lawyers will tell you that it is possible to live in the same house and still be living apart. This sometimes happens if living in another house or other accommodation would be difficult financially.

However, you must prove that you are living apart in the home and that there is no likelihood of reconciliation. For instance, there must be two bedrooms in the house so it is obvious you and your partner are not sharing the same bed.

Attending court for a divorce

If there are no children from your marriage and you apply for a divorce, you don’t have to attend the court hearing. In some cases a couple may have made a joint application for a divorce. In this case, if there are children from the marriage under 18, neither you nor your spouse have to attend the court hearing.

intestate
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Are You Intestate?

Not a lot of people think about making a legal Will drawn up by family lawyers; they may just tell their spouse or children that anything they have should be divided equally between them.  Unless one of their children is a favourite, in which case they may want that person to get everything. But unless they make a legal Will, this is unlikely to happen.

If you don’t have a Will, when you pass away you will be declared intestate, which simply means without a Will. Any assets you have will not be distributed to your family, at least not immediately. First, the matter will have to go through legal proceedings to ascertain exactly what you have in assets and how much it is all worth.

After that, the costs incurred in the legalities must be deducted from the total amount and what is left will then be distributed to the family. This is a poor substitution for having a Will that documents your wishes in detail. When you have a Will there will be no hold-ups and your wishes will be strictly adhered to. That is not to say family members can’t legally object, should they have been left out or get less than the others.

Objections can be put forward by any family member who feels they were not treated fairly. If this happens, the distribution of the Will is likely to take a great deal longer so the case can be heard and decided by the judge. All the family members may need to go to court if they don’t agree with the objection.

benefits-of-estate-planning
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7 Benefits of Estate Planning

Estate planning is about much more than just creating a Will so your assets will be divided the way you want them to be. Any estate planning lawyers will tell you that by planning your estate you are making the best decisions about your future and your family’s future in many ways. Here are several benefits of estate planning.

  • You should make a Will, but a Will is only part of estate planning, but it is an important part. By ensuring your Will is legal and binding, you also ensure that your wishes about the distribution of your assets will be carried out.
  • With an experienced probate lawyer to help structure your estate, taxes can be minimised so your family gets more.
  • Your family won’t have to deal with administration costs that can be very expensive if your estate plan is done properly. They will have enough to cope with at that time with the emotional trauma they will feel and all the arrangements that must be made for the funeral as well as other things affecting their future.
  • Estate planning also includes nominating a Power of Attorney to look after things if you are not able to. For instance, a stroke could leave you unable to communicate properly or at all. If you nominate someone you can trust to have Power of Attorney, they will be able to carry out your wishes as you have written down in your estate plan.
property-settlement-after-divorce
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How a Court Decides on Property Settlement after Divorce

While no one marries with the idea of divorcing, top family lawyers can attest to the fact that unfortunately, divorce still happens to a good percentage of couples. When it does, one of the main areas that has to be settled fairly is the distribution of assets. Even if there are not many assets, it is still important that both partners are treated fairly when it comes to asset division.

In fact, the court will also decide on the fair division of debt as well as assets, so that one person is not left with the kind of debt that they cannot possibly manage and the other person gets assets and no debt.  So how can a court possibly decide what is fair and what is not fair? Certainly it would be easier to make such a decision in a case where there are no children, both work and have equal income. However, this is rarely the case.

Sometimes, the wife is not trained to do any kind of work and if there are small children, it is usually the mother who must care for them – unless she is incapable of doing that for some reason. Then there is the question of assets that one or the other may have had beforehand, that they brought into the marriage and so on.

There is the question of whether both will care for the child or children equally in time, or whether one of them will take full responsibility. The court also takes into consideration future wage earning potential, and whether the children will be properly cared for if the prime carer also has a full-time job.

Disadvantages of a Binding Financial Agreement
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6 Disadvantages of a Binding Financial Agreement

When two people are about to enter into a relationship, one of them may decide that a Binding Financial Agreement (BFA) should be drawn up to protect them from financial loss should the relationship fail.  Consult the lawyerslist.com.au to find family lawyers to give advice to both parties involved and get an explanation on exactly what the terms of the agreement mean.

While such an agreement can be entered into at any time – before, during or after the relationship, it is best to do it beforehand or even during the relationship while both parties are happy. To be fair, there should be input from both parties, although this often does not happen. While there are advantages to having a Binding Financial Agreement (BFA), there are also a few disadvantages.

  • If it is drawn up before or even during a relationship, it can cause division if one party draws it up to suit themselves without any consultation with their partner. It can certainly make that person feel the other one does not trust them, or is about to leave the relationship. In fact, it would even seem that their partner is preparing for failure in the relationship rather than working towards establishing a relationship that is strong enough to last the tests of time.
  • No court or any other regulatory body gets to examine the details of the BFA. It can be drawn up in any way the person doing it deems fit, whether or not it is fair and just to the other person.