Divorce Settlement - how it works?

[Corsa]

Hi Team

I have a question relating to Divorce & Settlements for anyone who has experience or knowledge in this area.

Sorry if this has been posted before, but a quick search of the forum and google didnt provide to much and I kind of want to answer this question today if I can.

The scenario:

1. married couple in late 30's with 2 kids ages 9 and 7
2. both work although husbands earns more
3. wife has initiated separation and commenced relationship with someone else
4. jointly over 16 years of marriage they have a house (approx $200k) and an investment unit (approx $200k), some furniture, 2 cars, both have super - he has more
5. both wish to have children half of the week each as part of the separation

What I need to know

1. how do they separate the assets?
2. when can/should you initiate the property settlement?
3. when can they divorce?
4. what claim can one party have over the other in regard to separating the assets and maintenance, ie now and after the divorce?
5. anything else relevant that I have missed?

It would be great if anyone with any knowledge of this area or experience in divorce could give me a few pointers. Professional advice will be sought, we are just information gathering at this time.

Thanks all

Best Wishes

Corsa

 

[JoannaK]

Hi Corsa,

I think partners can get divorced one year after they've separated.

It's better to resolve as much as possible amicably without going through the court system as these days it really is pot luck in the courts. Gone are the days where the more reliant of the partners (usually the female) automatically gets 50% of everything.

I'm pretty sure that there aren't any duties and/or taxes associated with transferring assets due to a marriage breakdown.

There was a great feature story in the BRW last week or the week before (article title: Fight Club), about divorce and the division of assets and the family courts.

 

[tubs]

Talk to a lawyer

Boy it sounds like you really need to talk to a lawyer. Some of the finer points in your questions are fine but unless you get some proper advice I think you'll run into real trouble. You'll need one anyway to help with the paperwork, and maybe you can share one, if everything is amicable (not sure).

Having said that you wont pay stamp duty on transfer of assets as long as its done through the courts. They must make an 'order' even if you agree to a settlement.

If going through the courts, separation of the assets is based on needs and contribution, but since marriage has been so long, it probably wont matter too much who contributed, since both have for some time, and it will likely be divided down the line of the % split of the children's time with each parent, with some consideration of the fact that one parent earns more than the other.

You can start property proceedings any time, but IMHO I would be getting a settlement on the children first. Otherwise one parent (the mother) may fight for more time with the children (which she would win) and then take most of the assets.

Tubs

 

[Cosmo]

1) Total net assets divide by 2 is the usual starting point if all is amicable. Some solicitors start with a claim for one party of up to 100 % of net assets. This is great for the solicitors as it causes a hell of a lot of correspondence between parties (good for solicitors) not so good for the parties involved.
2) ASAP
3) One year after separation.
4) If it goes to court all manner of consideration will be given to each party according to their “needs” and "resources" (today and in the future).

I’m just a divorced guy with divorced friends and I can say that you should use solicitors for advice only. Also, a lot of consideration has to be given to the custody arrangements for the kids because this is the PRIME consideration.
Once your friends come to a workable agreement regarding asset split and custody arrangements, get the solicitors to put in writing.

Avoid the courts because they are only there to get the solicitors rich on your net worth!!

 

[Cosmo]

To further add:

I have had my 2 boys (now 12 and 10) in week about custody for the last 6 years and having a mid week transfer would be too disruptive to the kids. What I do is transfer through the school on Mondays. I drop off in the morning and the ex picks them up in the evening, the next week it’s the other way around……….easy!

 

[lizzie]

my stepkids have been on a split week custody for 9 years. all i can say is "don't do it". week about, or fortnight about is chopping and changing enough for all partied concerned. hubby has tried on numerous occasions to have this changed but ex won't agree because it (i suspect) disrupts her social time

 

[Corsa]

Thanks all who have responded so far, greatly appreciated!

So regardless of who initiated the separation, you both can get an equalish split?

They married young with no real assets so what they brought to the relationship is not so relevant.

Even if she earns less and her earning potential is lower as she has worked only part-timish while raising the kids, it is the norm to split down the middle?

What about how maintenance works, should he or her have to pay it?

If anyone has anything else to say on this topic would love to hear about it.

Best Wishes

Corsa

 

[lizzie]

the questions you are asking can only be answered by someone in a position to know all the pertinent facts - such as child support agency and solicitor/mediator. your questions are really like the piece of string question.

assets can be split any way possible - 50/50 60/40 70/30 etc depending on who has custody of the kids, when and what agreement the parties come to. usually income is not bought into account when dividing up, as she may have earned less but spent more time-wise raising the kids, cleaning the house, cooking the meals (i am assuming) etc.

csa usually decides who pays who what - ie, if 50/50 custody but father is earning twice as much as mother then he will have to pay some form of maintenance until the child either finishes school or turns 16, whichever is the least. look at the csa website www.csa.gov.au for more info. however, this can be negotiated between the parties. my hubby pays all the school and medical fees directly for his kids and the mother pays asg scholarship and other preagreed items. at the end of financial year they do a reconciliation and if one party has spent more than the other then half the difference is refunded.

 

[AlmostBob]

Get good advice early, even if an amicable separation
divorce actions can very easily go very bad.
mine did
male partner particularly should contact child support agency and request assessment. CSA assumes the non-custodial parent is responsible for any lapses (and assumes the male is always the non-custodial parent) and institutes penalties before they have all the information, even going so far as to attach wages of (most often) the male partner for a child in the male partner's care.
both parties should Document everything

The screwing I got, aint worth the screwing I'm gonna get. (David Niven:Bring on the empty horses)

bad attitude beaten in to me by a 'no fault' court system that actively promotes perjury,
wedding cost 18000
divorce cost 187000 over 10 years in 2 countries in magistrates,family,federal,supreme,and international courts
My Melbourne Lawyers (Maria Barbayannis QC & Associates (Clayton), real good absolutely shameless plug) did my last international occurrence gratis faxing several hundred pages of case history to Canada.

 

[AlmostBob]

Of course I seem a little paranoid
but its better to be a little paranoid, and wrong,
than to not be a little paranoid, and wrong.

plan for the worst, and hope for the best.

 

[bianca]

First rule--be FAIR!

Hi Corsa,

I am not a solicitor, but boy oh boy have I had 3 years of experience with this. If you want to know what to do and what not to do, private message me. Iam wealth of information on this particula r subject.
My best suggestion for starters is to be fair! The court is stacked in your favour to start, despite what others may say.
My second suggestion is-Dont just go to any old solicitor-go to a Family Law Specialist. There are constant new rules that they only know about. A standard solicitor can stuff up even the best chance you have, by not knowing his/her stuff inside out.They stuffed it up for us completely and we lost the lot, even though, by rights we should have come out with 75% of the asssetts.Our side was the male side though, a huge disadvantage right from the start.
My third suggestion is- keep it fair!And keep it out of court. Once it goes to court, even if you are fighting for what you KNOW is yours, it all depends who can lie the best, and if the other party is that way inclined, you are screwed.Then you can try an appeal, but everyone knows that it will take a hell of a lot to sway a new judge to over rule an other judge. Once you start playing with the brotherhood, what you are fighting for wont even matter, because the costs are WAY above the average persons budget. Our case cost $35000.00 for our side, $55000.00 for the other side, and an other $30000.00 for an appeal. We are now suing, but that is an other story.
Dont be greedy, be fair. Think about the kids-they love their dad and you the same, and you want to make it as amicable as possible for their sakes.
It all depends who is in the house, who has the kids, who is in a relationship, who contributed what and a whole lot of other things, which can be twisted and turned and schemed out, if so desired, and what the other side is wanting. Therefore--keep it as fair as the other side allows it to be.
Go see that family Law Specialist tomorrow--the sooner the better. There is alot to be done.

 

[plumtree]

As a grandparent and detached observer I will make the following comments:

-Despite benefiting most, solicitors should not be trusted to get it right.
Study everything they do and check the details.

-As time goes by, the kids become irritated that they have to leave home and friends every second weekend or whatever.

-It is going to cost big time, so get it over and done with quickly!

-Grandparents, if any, become a sort of safe haven for the kids in the early days and this is important for their well being.

 

[duncan_m]

-As time goes by, the kids become irritated that they have to leave home and friends every second weekend or whatever.

Kids get annoyed when they get denied lollies every time they ask... its no reason to award major custody to one parent and have the other parent scratching around the edges to see their kids every second weekend or something equally ridiculous..

 

[Monopoly]

Divorce settlements are best managed by the (separating) parties concerned. And by far it is the cheapest way (although not always possible ie. in situations where animosity is in the equation). Decisions about "who gets what" should be made between husband and wife MINUS any input from legal eagles who are predominantly only concerned with lining their own pockets!!

Division of assets, child support payments and generally any materialistic issue, wherever possible (IMO) are best worked out by mutual "agreement" between the two adults, as far removed from any law court as possible. And in an ideal world, full and/or shared custody of children would also be mutually agreed upon, but alas this is seldom the case.

Children are the real losers in any separation/divorce scenario; often because they are the ones who are involuntarily, emotionally and physically torn between the two people they most often love EQUALLY. And this IMO is the greatest tragedy!!

My only piece of advice - (EACH TIME not just initially) before you do (or say) anything - stop, take a step back for a minute, and think about the children!!

 

[Monopoly]

wedding cost 18000
divorce cost 187000

Gee, you did well AlmostBob,

My wedding cost $10,000
My divorce cost $2,500,000

but hey, I got to keep my kids and that in itself was/is PRICELESS!!!

 

[arungounder]

but hey, I got to keep my kids and that in itself was/is PRICELESS!!!


Well done Monopoly........... I would have done the same and put kids in front of the cost.