How to Protect My Properties in a Divorce

[Greg45]

Hi

My wife and I are having few family issues and are going through a very tough time at the moment. There is a possibility that divorce is on the cards in the distance future if we are unable to sort out these issues in a mature manner.

I was wondering how best to deal with the property.

Currently I have couple of investment properties which are jointly own by me and my sister.
These properties were acquired before the marriage. At present my wife and I do not own any properties, as we have only been married for a short period of time.

I really hope that we can be mature enough sort out our issues without going through a divorce. However if all attempts fails what are the legalities of properties held between me and my sister? Please note these properties are not currently in a trust?

I hope someone can help ease my mind that I won't lose everything me and my sister has worked hard to achieve.

Thank you in advance for your help.

Greg

 

[Rixter]

Its a possibility your wife can take you for half.. even if things were held in trust the family court has powers to go into.

Best you get sort things like you say.

 

[alexlee]

Unless you have a pre-nup, everything of yours is up for grabs in a divorce.

Joint ownership with other family members is not a good idea, and not just in situations like this.

 

[Perp]

As others have said, Greg, it's way too late to think about protecting yourself now. You either sort it all out before you marry or cohabitate, or you commit yourself fully to making the relationship work.

Particularly since you can't change the asset division if you do ultimately divorce, I believe it'd be wise to avoid wasting any mental energy on contemplating divorce. If you're truly committed to making the relationship work, then you should be 100% focused on finding ways to be happy together, and put any thoughts of other options out of your mind, or they can become self-fulfilling prophecies.

 

[Terryw]

It is possible to do a post-nup. ie a Binding Financial Agreement can be entered into any time, before, during or after marriage.
see s90c FLA for BFAs during a marriage
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90c.html

 

[Perp]

It is possible to do a post-nup. ie a Binding Financial Agreement can be entered into any time, before, during or after marriage.
see s90c FLA for BFAs during a marriage
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90c.html

Well, learn something new every day!

However, I can't see that asking his wife to sign a post-nup is going to help improve their relationship.

 

[Nathan]

An option, I am not putting my name to.....

But theoratically.... if your sister took a second mortgage against the properties. Then there would be no value left in the homes for a sale or settlement. How naughty of you sister to do something

 

[Terryw]

Yes Perp, it won't be easy to bring up, or to get her approval to sign. For starters even if she agrees she must go to her own separate solicitor who must advise and explain to her the document she is signing. These solicitors will usually say, wait, don't sign that as you are probably entitled to more money.

 

[Terryw]

An option, I am not putting my name to.....

But theoratically.... if your sister took a second mortgage against the properties. Then there would be no value left in the homes for a sale or settlement. How naughty of you sister to do something

But what about the money the sister borrowed? that would still be an asset of the hsuband.

 

[Terryw]

Hi

My wife and I are having few family issues and are going through a very tough time at the moment. There is a possibility that divorce is on the cards in the distance future if we are unable to sort out these issues in a mature manner.

I was wondering how best to deal with the property.

Currently I have couple of investment properties which are jointly own by me and my sister.
These properties were acquired before the marriage. At present my wife and I do not own any properties, as we have only been married for a short period of time.

I really hope that we can be mature enough sort out our issues without going through a divorce. However if all attempts fails what are the legalities of properties held between me and my sister? Please note these properties are not currently in a trust?

I hope someone can help ease my mind that I won't lose everything me and my sister has worked hard to achieve.

Thank you in advance for your help.

Greg

Greg

Your soon to be ex-wife may not be entitled to much at all.

There are a few ways she could try to get her hands on your assets:

1. Spousal maintenance. Your assets could be taken into account in assessing your ability to provide for your ex-spouse. But this would also depend on her ability to support herself etc

2. Property settlement. Assets of the marriage will be divided up. Here the courts will take things into account such as financial contributions in purchasing and maintaining the property, non-financial contributions, when the property was purchased etc

The shorter the marriage the less change she has of getting a larger slice of your pre-marital assets.

 

[Bigtone]

Greg

Your soon to be ex-wife may not be entitled to much at all.

There are a few ways she could try to get her hands on your assets:

1. Spousal maintenance. Your assets could be taken into account in assessing your ability to provide for your ex-spouse. But this would also depend on her ability to support herself etc

2. Property settlement. Assets of the marriage will be divided up. Here the courts will take things into account such as financial contributions in purchasing and maintaining the property, non-financial contributions, when the property was purchased etc

The shorter the marriage the less change she has of getting a larger slice of your pre-marital assets.

what i have seen supports this advice.

if u had kids it is a whole different story

 

[Greg45]

Thanks Terry W and Bigtone for your advice.

Unfrotunately we do have a child, so that might make things bit complicated.

If me and my sister put all our assets into a Trust right now, will these be not accessable in a divorce by my wife?

 

[Rixter]

If me and my sister put all our assets into a Trust right now, will these be not accessable in a divorce by my wife?

Waste of time....The family law court has the power to access assets held in a trust.

It is also very costly to transfer assets into a trust as you will incur all the usual stamp duties, CGT's etc because you are effectively selling the property to the trust.

 

[Terryw]

I agree with Rixter。

You should get some professional advice.

Maybe you should just sell the property, ie get rid of it now, and get the cash. A court could still take this into account though in making orders.

 

[TEG]

cut your loses.

give her half.

start a new life.

 

[Perp]

If me and my sister put all our assets into a Trust right now, will these be not accessable in a divorce by my wife?

As others have said, they'll still be accessible; the Family Court has far-reaching powers.

The only likely effect of transferring assets into a trust at this stage is to annoy the Family Court judge, who'll perceive that you're trying to cheat the system, so it's an all-round bad idea.

 

[rugrat]

And people wonder why divorces get messy....
Way too late now to think about how you can keep everything for yourself, unless you want a long messy drawn out divorce, and then still propably have to share it all anyway.

 

[Dazz]

cut your losses.

give her half.

With a child in the mix - that is a VERY BIG assumption.

 

[steveadl]

Good luck Greg, hope for your sake (and not just money side of things) you can patch things up.

Going to have to go through the whole divorce thing myself later this year.

 

[Uncle Perce]

Hi Greg,

my heart goes out to you and your wife as that is a devastating thing to go through.
I pray you guys can work together and get through it to come out stronger .
I realise sometimes thats doesnt happen.There can be one half of the partnership that isnt willing to try ,or maybe unfaithfulness , i dont know .

In terms of financial seperation-If the marriage (including time you were living together before you married) was less than 4.5yrs(approx),they call that a "short marriage".Thus generally the courts agree to give back each party what they owned before getting together.(what they brought into the relationship)
Then whatever equity (or loss) you have made /gained since being together is divided up between the two.
But having a child in the mix changes this -All sorts of other things come into the mix-eg-support until the age of 16 etc etc.

Also on a side note-Binding finacial agreements can be challenged in court .So solicitors now recommend to write the agreement up then get Consent orders stamped by the court.(these cant be challenged later on down the track .