Separation

Will I be disadvantaged by leaving the home without the children?

Yes. The disadvantages can be very significant. If you do not take the children with you, you are effectively conceding that the other party is able to look after the children, at least for the immediate future. Although you are not prevented from applying for an order for the children to live with you, that can take many months if not years. There is also the cost involved in taking that court action. Once you have moved out, even on a "trial separation" basis, you may be prevented from going back into the home. The fact that the home is in joint names, or even in your name alone, may not make any difference to this happening. Accordingly, if you find that you must leave the home but believe that the children should live with you, obtain advice on the ramifications. However, if you are forced out of the home, due to violence and are prevented from or are otherwise unable to take the children with you, that can be grounds for making an urgent application to return to the home, and perhaps have the other party forced out instead. Again, sound legal advice is required.

How often can I see the children?

In most cases, one parent is clearly the primary caregiver, and the children will live with them. That parent can obtain an order for the children to live with them (formerly known as a custody order or residence order). The other parent seeks an order for the children to spend time with them (formerly called access or contact). Ideally, your spouse and you should be able to work out a reasonable routine for this. You must keep in mind that it is the children's routine that counts, and it is their right to see both parents the court looks at. There is a presumption of equal parental responsibility and shared care. Note that shared care does NOT mean week-about or equal time. What it means is that both parents are meant to have substantial and meaningful time with the children. Often, parents agree that spending time should take place each second weekend and half school holidays, as well as special occasions. This could be from Friday evening until Sunday evening, or even Monday morning, depending on what is best for the children's routine. If the parents live reasonably close to each other, an evening midweek either for a few hours after school or overnight might also be agreed upon. Children do like to have the non-resident parent take them to school sometimes. However, midweek time can be disruptive to the children's routine. After all, during the school year, they have to do homework etc. If you cannot agree on parenting arrangements, or have problems, you should go to Family Counselling at Family Relationships Centres. Their services are free. It is not "reconciliation counselling". Rather, it is counselling designed to get the separated parents focused on how to behave as a separated couple with the children's best interests in mind. Counselling is mandatory before you can make a court application except where there are domestic violence issues. You should get advice if you are dissatisfied with arrangements for the children.

What if my spouse moves interstate or overseas with the children?

If permission to move has not been given, the other party can be forced to move back. This is however, very much on the basis that you take immediate court action to achieve this result. In that case, the court will usually require the moving party to return to where they were living before the move. In this way, the court ensures that one party is not disadvantaged by the other party taking matters into their own hands. The concept is similar to an overseas move without permission. The moving party will be ordered to come back unless there are unusual circumstances. Those rules are covered by the Hague Convention. As a general rule, if the person with whom the children live wants to move interstate for genuine reasons, the court will allow them, but only after both parties have been given an opportunity to argue their case. Genuine reasons may be to move back to family support interstate, or because they have remarried and the new spouse has been transferred interstate. If you are in the position where you have children and want to move interstate or overseas, make sure you have permission to do so.

Otherwise, seek legal advice about how to make the move with a minimum of fuss.

What other disadvantages are there in leaving the home?

Although you do not lose your financial entitlements to the home, by leaving it you now must take the initiative to obtain that entitlement. If the other party will not negotiate, or does not offer a fair deal, you must apply to the court for your entitlement. This can be costly, and will take many months if not years. Often, staying put in the home has the effect of forcing settlement negotiations to be concluded much faster. This has to be balanced against the disruption it may cause to the children. If you do not take a fair share of the contents, you may not ever be able to obtain possession of them.

This is not because you lose your rights. Rather, the time and cost of doing so cause many people to "give up" on pursuing the items in question. Contents are valued on a liquidation basis for court purposes. The courts really do not like to deal with furniture disputes, actively discouraging people from doing so. There are valid reason for this - mostly being the high legal costs of the exercise, which often outweigh the value of the items.

It is fair to say that "possession is 9/10ths of the law". Sadly, when people separate, emotions run high and may result in inappropriate behaviour such as damaging or destroying furniture and personal effects. If you have items of particular sentimental value, it may be prudent to remove them from the home for safekeeping, even if you know the other party will be leaving. Once again, before you make the move, obtain advice about the options available to you. It is also fair to say that the court takes a dim view of people who strip the house of contents when they leave. An easy way of obtaining a record of what furniture is in the home is to take a video camera and walk through each room with it.

Will I have to pay my share of the mortgage if I am not living in the house?

In short, you should not pay. In theory, your spouse now has exclusive use of the property and is treated as a tenant. Fair rent should be paid by the tenant spouse, and very often this is represented by the full mortgage payments as well as rates and taxes. If the mortgage is not paid, the mortgagee may sell the property and there are credit rating ramifications. Normally, your spouse will not want to leave the home and will pay the mortgage to avoid that result. If the spouse needs maintenance and child support, the likelihood is that you will either directly or indirectly pay for the mortgage by providing sufficient funds to achieve that result. This can be achieved voluntarily or by your spouse obtaining a Court order if you refuse to do so. It may not be possible for you to pay the mortgage for genuine reasons and the house will have to be sold. Arrangements can sometimes be made with the mortgagee bank to reduce payments until the house is sold.

Who gets the house?

The person remaining in the home usually has first option to buy out the other person's interest. For example, if the home is worth $750,000.00 with a mortgage of $250,000.00 the asset in the home is $500,000.00. If the court decides on an equal division, the person in the home can keep it if they can refinance or extend the mortgage to $500,000.00. That is, they take on the mortgage and borrow another $250,000.00. The payment out would be less if the percentage was 60% in favour of the person in the home. If you cannot borrow that amount, the home would have to be sold.

Similarly, if the other party kept for example a holiday home with a net asset value of $400,000.00 this would be offset against the payment. Again, in that case, the payment would be reduced by $200,000.00 to compensate for losing out on the holiday home. The benefit however, would be that the mortgage would only be extended to $300,000.00. Often there are valuation disputes. Commonly, the person in the home wants a low valuation, to lower the payment to the other party, while the other party wants a high value. Valuation disputes are common reasons for cases not being resolved. Transfers of property between spouses are usually free of stamp duty.

For more information regarding revenue/tax implications of transfers of property and other assets see Tax issues in Family Law Property Settlements by Peter Szabo.

Who gets the car?

You usually keep the car you have been driving before you separate. This applies even if the car is registered in the other person's name, or in a company name. If your spouse takes the car off you because it is registered in their name, a court will order it to be returned to your use, particularly if you need it to drive the children around. When a final property settlement takes place, an adjustment will be made for the car kept by you. Transfers of cars between spouses are usually free of stamp duty.

Can I take funds from the joint account when I leave?

If you are a signatory to the account, you can. Whatever you take will be considered an asset to be divided by the court in due course. For example, assume you took $10,000.00 from a joint account, being the total of it, and your spouse had a car worth $20,000.00. If the division of assets was meant to be equal, you would be entitled to another $5,000.00 to balance the equation.

There are many reasons why that division may not be equal, but the concept should be clear, namely that control of funds in the short term does not mean it is ignored in a later adjustment of assets. There can be short term advantages and disadvantages. For example, if the financial provider leaves the house, and also empties the joint account, the remaining spouse may suffer an acute financial shortfall. Conversely, if the homemaker is able to take some or all of the funds before the other person gets to them, that issue could be avoided. Again, in an ideal world, the parties would divide the funds fairly, and proper maintenance and child support would be paid. But not always! Emptying bank accounts may give a temporary advantage. It may however, also "set the stage" for unnecessary aggravation. This usually increases legal costs to both parties.

Can I change the locks on the house once the other person leaves?

Legally, both parties have the right to live in a jointly owned home. However, if one party leaves and establishes a separate residence, it is fair to say that both of you should respect the other's privacy. That is, you do not go to the other's residence uninvited, and likewise now that the other spouse has left, nor should they just turn up and come inside uninvited.

This would clearly be the case where personal effects have been taken to the new premises, and some months have passed since this happened. Hence, it may be appropriate to change the locks if your spouse does not see it that way. You should however, obtain advice about the ramifications. There are problems doing this if you have only just separated, or the separation is not "clear cut". It can be viewed as a "declaration of war" by the other party. Problems arise if the person locked out has personal belongings still in the house. On the other hand, you may have to change the locks to prevent a spiteful spouse from entering the premises, damaging things or removing items needed by you or the children.

Once again, the permutations are numerous and you should get advice on your options. The fact that the house is registered in one person's name does not change this situation. It may however, make the spouse who left still feel that "it is my house and I can come in when I want" - which is not necessarily so.

What financial support has to be provided for the children?

Child Support is paid to the resident parent by the other parent. An administrative assessment is usually obtained from the Child Support Agency, and is based on both parties disposable income. See the Child Support Agency Site for more details on how the formula works.

A basic calculation of what you would receive/what you would pay can be obtained by using the Calculators on the Agency web site. In practical terms, parents often make their own financial arrangements, particularly when private school expenses have to be covered. It is very common for parties not to rely on the administrative assessment and to enter into a Child Support Agreement. You are urged to obtain legal advice before committing yourself to such an agreement.

I think my spouse is hiding assets. What can I do?

Sadly, some people just do not want to be sensible or fair.

Uncovering hidden assets can be difficult. Some clues on what to do can be found on the American sites devoted to divorce, such as the Tao Pre Divorce Checklist The laws are different there, but devious behaviour and how to uncover it is universally applicable! You will almost certainly need expert assistance in this task. It is easier to obtain information before you separate than after. Contact us for more details.

How does the court divide our property?

Our Client Notes give a broad overview of the considerations the court takes into account. Put simply, the court takes into account the respective contributions of both parties. Financial and non financial contributions are considered. The contribution of a homemaker and parent is seen as significant, and normally equal to the financial contributions made by the other party, even if they are considerable. It is fair to say that it most cases, the court starts with the assumption that the contributions of both parties are equal. Examples of factors that change this assumption are significant assets brought into the marriage, inheritances or gifts received from one party's family. Having considered those contributions, one party may be given a larger adjustment based on that contribution. But that is not the end of it. Then comes the most misunderstood concept in Family Law - the adjustment for "needs". Commonly, one party has the children, and is financially worse off than the other. In such cases, and particularly when the asset pool is modest, the court will adjust 60% or more of the total assets to the party with the children. This is so even if the marriage was short, and the other party brought most of the assets into the marriage. There is no set rule on 50/50 or 60/40 - each case depends on its own peculiar facts, and legal advice is essential in determining what is a fair distribution. Get legal advice on this before attempting to negotiate with your spouse.

What happens to Superannuation?

Superannuation can be divided between the parties in the same way as other assets are divided. Proper consideration of how to fairly deal with superannuation can be complex. Options can impact on the entire financial planning strategy of the parties. Every case is different. You really need to obtain advice on this subject. For more information see Peter Szabo's article Superannuation splitting under Family Law.

My parents gave my spouse and me a significant cash advance. Who benefits from it if we separate?

Generally speaking, if it was a gift, you will receive some adjustment in your favour. That gift came from your family. It was given on the expectation that you would remain married to your spouse and if you separate fairly soon after that gift, a full credit is likely. As the years pass, the Court's attitude is that any credit is lost. If the gift was 20 years ago, little if any credit would be given in your favour. This result would be different if the payment was a properly documented loan. If the advance was a loan, then the passing of time is much less likely to diminish the adjustment in your favour. In fact, the loan will probably be repaid. The key issue is whether the advance has been properly documented. The court is highly suspicious of changed motives - gifts to happily married children in law suddenly becoming loans when the couple separate! These issues need careful consideration and legal advice is essential to determine what is likely to happen.

What should I take to the first interview with my solicitor?

A clear head and a friend! The purpose of the first interview is for your solicitor to ascertain what your case is about in broad overview. You can then be advised as to what further information is required to fine tune any advice given. You will also decide whether you are confident with the solicitor as well. You should discuss what your case will cost, and whether you are eligible for legal aid. Because separating from your spouse is an emotional experience, you may not be in a position to be able to take in all of the information your solicitor gives you. Having a friend with you means you can discuss the interview afterwards. Your lawyer will obtain some general information from you to start with.

Certain basic information is covered, including details of dates of marriage, separation, and so on. An example an instruction sheet used by us can be referred to as a guide for what to expect in an interview. This document is in PDF format and requires the free Acrobat Reader to be able to read it.

How do I get legal advice, and what will it cost?

You can contact us at Moores Legal. If we cannot help, then we can refer you to someone who can. Alternatively, we refer you to the Family Court listing of Legal Aid Commissions and Law Societies in Australia provided via the Family Court's website. They can provide you with a list of accredited specialist Family Lawyers. There is a further explanation in our Client Notes under the topic Legal Fees and Communication. Another useful site for general information on using lawyers and family law information is at the site Law For You. The Victoria Legal Aid Commission Site has a wealth of information on Family Law, including hints on using a Lawyer. Apart from legal fees, there are filing and other fees imposed by the Family Court. If you are in receipt of a pension, or otherwise cannot afford to pay those fees, you can generally waive those fees.

Will I have to go to court?

Most cases are resolved without having to go to court. If you reach agreement, it is strongly recommended that you document it, and have consent orders made at court. In that case, no one needs to actually attend court. The paperwork is posted to the court and the orders will be entered in the court records. There are times when you will have to seek the court's assistance. Sometimes protection orders are required, or orders for the return of children are necessary. Such court action is obvious and necessary. What if there is no urgent dispute, but agreement has not been reached? It is generally preferable to negotiate without the threat of court action. The reality is that sometimes the other spouse takes advantage of the delay.

Further, the fact is that your lawyer is much more likely to pay attention to those cases that are coming up to a court hearing than to cases where no court action is pending. That being the case, our recommendation is to give consideration to taking court action sooner rather than later, particularly if you feel you are being disadvantaged. Discuss the process and your options. You should be aware that the court process involves 3 main stages, the first two of which are conciliatory. That is, the process is designed to bring about a settlement with minimum court intervention and conserving legal costs. Up to 75% of cases resolve at these first two stages. You can always slow cases down. It is much harder to hurry the process up, and the delays in obtaining a hearing in non-urgent cases can be over a year. Examples of where you may be forced to go to court in non urgent cases may be where you want holiday contact to the children and your spouse will not agree or will only give you limited time. Another example is where you are entitled to a reasonable payout for your share of the home, and your spouse refuses to consider any proposal you put. Both of these cases are unlikely to proceed to a final contested hearing, but unless steps are taken to move along the process, you will be left with no effective remedy. See our Client Notes for further information on court procedures.

Other useful information on the Family Court Pages

The Family Law Courts, the Family Court of Australia and the Federal Magistrates Court of Australia have extensive websites, with a wealth of information on many issues, ranging from children and property to counselling and consent orders. That information is summarised on our Client Information Page as is other Family Law Information, such as legal aid sites, where to obtain marriage certificates, court forms, child support information, and so on.