Thinking of separating or having separated, the obvious question is “what is the property settlement process after separation?” or “how much will I get?” Or ‘what do I do next, do I have to wait for a divorce?”
The short answer is that a property settlement can take place immediately following separation, there being no need to wait for a formal divorce. Importantly, if married, any application for property settlement must be made within 12 months of your divorce or two years the date of separation for de facto couples
Does it matter who starts the process?
As a matter of law it does not matter who starts the process. However, there are many reasons why it may be advantageous one or the other parties to start off the process.
Is there a simple formula to work out who gets what in the divorce settlement process?
Each matter is very different. There is no family law property settlement calculator and rules of thumb only lead to poor results being obtained. Entitlements are different in every matter and we therefore take a case-by-case approach for all our clients. We offer first free conference with an Accredited Family Law Specialist, which is the best way to get the process moving into get a general idea of how we can help you.
The property settlement process includes the following:
- What is the net pool of property available to divide?
- What contributions have the spouses made?
- What are the future needs of the spouses? and
- Is the proposed property division just and equitable?
At our first conference we give you a better idea on how you can help streamline the process and help minimise your expense. We also discuss your options including mediation and collaboratively negotiated settlements.
Very often the difficulty is in identifying all the assets and liabilities especially where one party is trying to hide assets. This is where having an accredited family Law Specialist really helps.
Some of the common concepts include:
Direct and Indirect Financial contributions: the considerations for financial contributions can be quite extensive running from the commencement of the relationship up to and including the date of separation and indeed following separation right up until the date of any settlement or hearing.
Non-financial contributions: this refers to contributions made which do not necessarily include monetary contributions but might include actions taken by one party which has helped increase or maintain the value of the property or indeed had a negative impact on the property .
Homemaker/parenting contributions: the contribution of parents in about the home and in the care and supervision of the children are valuable contributions and need to be carefully weighed against the other type of contributions.
Identifying the contributions is only the starting point. How one contribution is weighed against other contribution is where our specialist lawyers can assist you in obtaining the best possible result.
Future Needs: not only does the law require an analysis of contributions leading up to any settlement, but also consideration of each of the parties future needs having regard to such matters as:
- the age and health of both parties;
- whether one spouse earns a higher income than the other; and
- who has the care of the children;
Global approach or asset by asset approach : many times it is necessary to approach a matter by way of identifying specific assets in identifying specific contributions to that asset. The global approach often taken by lawyers is not always the correct approach. We strongly suggest you seek property settlement advice from one of our Family Law Specialists for your specific situation as well as to see what the best way is for you to formalise your property settlement.
Just separated and not sure what to do? Give one of our specialist family law solicitors a call today on 9560 6811 and organise a first free no obligation consultation before making any decisions. We offer first appointments in both our Sydney CBD and Leichhardt offices.
Author: Franco Pomare, Principal
Service: Family Law
