Divorce or navigating a separation has, more than likely since relationships began, held a place at the top of the list of the worst life stressors and as anyone who has had the misfortune of going through it would tell you, it can be one of the most difficult times in a person’s life. Thinking about embarking on the road to separation is therefore bound to raise in one’s mind many pertinent questions about which there can be economically vitally important answers. I firmly believe in this situation, knowledge is power. An informed person can make rational and considered decisions about how to move forward and navigate a financial separation strategically and to their advantage. So then how does one become informed? Read on to find out the answers to the top five most frequently asked questions by a new client in this situation.
1. What do I do if my ex starts selling or disposing of assets?
Simple! Act fast. The Family Court can make an order (known as an injunction) on an urgent basis to prevent a party from selling or disposing of assets if there is evidence that there is a real risk that the sale or disposal is being undertaken to defeat or deplete another party’s claim or potential claim for a financial settlement.
If an asset has been sold or disposed of, it still may be possible for a party to prevent the sale proceeds from being spent or dissipated pending a financial settlement or final Court orders being made. The Family Court can order that an asset, such as the sale proceeds of real property, be preserved and not disbursed without the consent of all relevant parties to a case or until the Court makes a subsequent order as to the manner of their disbursal.
2. Do I have to disclose all of my assets and income?
Yes. The Family Court places a significant emphasis on the need for both parties to make a full and frank disclosure of their financial position.
The Family Law Rules which govern applications in the Family Court provide that parties to financial cases must disclose documents to the other party to proceedings which is or has been in their possession, or under their control which demonstrate their financial circumstances and which are relevant to the issues in dispute in the case.
The obligation to give disclosure is an ongoing one which continues from the time that financial settlement negotiations commence until final orders are made to resolve any Court proceedings.
3. Do I have to maintain my ex and pay alimony/spousal support?
In some cases, parties to a de facto relationship or marriage have the right to receive maintenance from the other party. A party to a de facto relationship or marriage is liable to maintain the other, to the extent that they are reasonable able to do so, if and only if, the other party is unable to support themselves adequately whether it be:
- by reason of having the care and control of a child of the relationship who has not attained the age of 18 years;
- by reason of age or physical or mental incapacity for appropriate gainful employment; or
- for any other adequate reason.
The Court must determine whether the payer is “reasonably able” to pay the payee and whether the payee is “unable to support [themselves] adequately”.
The Family Court has an extensive power to order that that the payer pay the other party a periodic and/or lump sum of maintenance.
The Court may also consider it proper to order that, in addition to paying a periodic sum, the payer pay certain expenses on the payee’s behalf, such as private health insurance premiums, mortgage repayments associated with a home in which payee is living, outgoings associated with any such home and other expenses which that the payee is unable to meet themselves.
The amount of spousal maintenance a party may be liable to pay (if any) to another party is determined based on a consideration of the parties’ respective financial and personal circumstances at the time the Court is considering the issue.
4. Am I entitled to any of my ex’s assets?
If you were married or lived in a de facto relationship of at least two years’ duration or made significant financial or non-financial contributions which, if they were not recognised would result in you suffering serious injustice, the answer is more than likely, yes.
The Family Court uses a four stage process to determine what orders to make by way of property settlement.
The four stage process is as follows:
- Identify and value all of the existing property of the parties.
- Assess the contributions (both financial and non-financial and contributions to the welfare of the family) of the parties.
- Consider the parties’ ‘future needs’ factors by reference to 19 statutory considerations, such as the age and state of health of the parties, the income, property and financial resources of each party, each party’s earning capacity and whether a party has the care of a child of the relationship under the age of 18 years.
The Court will then determine whether it should adjust the outcome awarded on contributions to take these factors into account.
- Finally, the Court must determine if the overall result is one that is “just and equitable” having regard to which particular assets are retained by each party.
However, the Court is not required to approach every case with clear reference to this process, nor is it required to approach each case in any particular manner, therefore this is simply a guide. In some cases for example, the Court concludes that it is not “just and equitable” to alter the existing legal interests of parties in their property and make orders for property settlement.
A parties’ entitlement varies in each individual case and for this reason, advice specific to your own personal circumstances should be sought.
5. Do I have to pay child support?
Child support payments are calculated using a complex formula. While the calculations are complex, the principles are fairly straight forward. They are:
- Each parent is responsible for meeting the costs of their children.
- The costs which they are required to meet will depend on the number and ages of children.
- Higher income earning parents are required to contribute more.
- A parent gets credit for meeting expenses while caring for their children.
- A parent will pay support when their income percentage exceeds their cost percentage.
Child support is calculated as the costs of the children multiplied by the difference between your income percentage (your share of you and your ex’s combined income) and your cost percentage (the credit which you receive for your time with the children).
You will pay child support if the result is positive and be eligible to receive support if it is negative. However, you don’t have to pay child support if you have at least 65% care of your children.
Please contact us via email or phone to discuss your circumstances and how we can help you to navigate a financial settlement.