The Breakup Battleground: How to Protect Your Assets & Your Family in a Divorce.

April 14, 2015

mother-faces-child-custody-battle-during-divorce

Your wedding day may well sit in your mind as one of the happiest moments of your life. You stand across from the man of your dreams as you say those two words that, by all definitions, begin the rest of your life committed to that one person.

From buying your first car together, to building your first home, to the momentous occasion when your first child is born, married life is an intricate kaleidoscope of experiences, events and occasions that have increasingly intertwined yours and your partner’s lives.

And as the years go by, the two of you have worked together and sacrificed for the greater good of the family whole – placing trust in your partner as your companion and confidante.

Perhaps you’ve sacrificed your career to become a stay-at-home mother.

Or maybe you’ve given over your own financial independence for the shared financial responsibilities of you and your partner. Rather than spend on yourself, you’ve placed your money into your child’s tuition, a second property, or credit card payments on the home.

It could be the simple fact that in marrying, you gave over your own dreams and aspirations to help your partner reach theirs. But you have knowingly made these sacrifices, day upon day, year upon year, trusting in your partner and the strength of your relationship.

And so, on that fateful day when your husband, seemingly out of nowhere, arrives home one evening saying that he can’t do it anymore, that he wants out, where are you left?

In a matter of minutes, the life you placed so much trust in can break down before your eyes. And as you look for the motivation to move forward, the battle has only just begun for your independence in the battlefield that is divorce.

 

The most common reasons for a divorce

How many people can say they entered into marriage planning for divorce? I wouldn’t know one. The break up of a relationship and the eventual file for a divorce is an unexpected, often cruel and confused situation. And while the reasons for spousal breakup vary, the inevitable separation is, generally speaking, not without its forewarnings.

Often, we find the common reasons for divorce occur from a general drifting apart, where one or both partners in the relationship becomes overwhelmed by a lack of intimacy, unmet partner expectations, communication issues and/or changing priorities.

But here, too, there is a darker side to the reasons behind marriage breakdowns. From financial hardships that tear into the bind of two people, to unfaithfulness, drug and alcohol-related abuse and the tragic but overwhelming incidence of domestic violence, for many, marriage has been a subtle, but nonetheless gradual form of self-imposed torture.

 

The most common reactions to a divorce

When the relationship comes to a halt, the underlying cause for the separation is generally brought to the fore in an altogether unsavoury fashion as one partners’ unhappiness, malcontent, or controlling nature swell and erupt as the separation process begins. Previously amicable partners can become narcissistic as they cling to a failed relationship.

One of the most dangerous times seems to be when a partner is trying to either physically or legally separate from a partner. The pending termination of marriage can lead many partners to violent acts – including spying, physical beatings, vandalism, and attempts at child napping.

If normally non-violent spouses can engage in abnormally abusive behaviour at the onset of a divorce, you can imagine the extent existing abusive partners might go to in their attempts to maintain control and domination over their families.

 

Separating from an abusive or manipulative partner

While abuse can and does occur to male and female partners, there is an overwhelming proportion of women who fall victim to the will of abusive partners. Oftentimes, the male is either earning more than the female, or is the sole form of household income while the female works as a full-time mother. In this way, the male is able to take a dominant position from a place of financial power – leaving the female at the mercy of his control.

For those women who have fallen victim to an abusive partner – be it emotional, physical, sexual, or other forms – it can take years to break the cycle of domestic abuse. From homes broken by drug and alcohol abuse, to violent, manipulative and controlling partner behaviours, the decision for many women to file for divorce comes after years in an unhealthy, and often unsafe home environment.

And as they file for divorce, they do so in the midst of a still abusive relationship, in the desperate hope to fight to ensure the safety of their child or children and themselves.

As soon as a child or children enter the picture, the situation complicates further. Women seeking a separation do so in the midst of a still abusive relationship, in a desperate hope to free their family from toxic or abusive households.

And as one looks to the battlefield ahead – divorce may well stand to threaten yours and your family’s safety, your financial livelihood and your home. Women of abusive relationships in particular face the very real fear they will be left out cold on the street – as the husband threatens to take it all.

 

Take action and take your share

As you look at the marriage you’ve identified with for the past five, ten, even twenty years, you start to realise that divorce isn’t just a separation from a relationship with another person.

A divorce is a separation from the intricate details of a life you created with that person. From the first home you made together; the two cars and a mortgage, to the child or children you raised together and the assets you bought – including shared financial accounts and credit card debts – your life and what you have to show for it, more often than not, is inextricably linked to that of your partners.

So when the relationship breaks up, what are you left with?

It’s natural for fear to set in about what is going to happen to you and your kids at the onset of separation. Help starts by understanding your entitlements and seeking legal advice to give yourself and your family the best chance at a fresh start.

 

The procedure for obtaining a divorce

First things first, separating from your partner for whatever reason is a detailed process with many parts. If you are serious about moving through the battlefield to come out on top, you will need to understand the process and be smart in the steps you take from this point on.

If you have children in the relationship, which parent your child will go to is a separate issue in the courts under parenting arrangements. Secondly, you have no doubt accrued some level of shared financial assets with your partner over the course of your relationship. Similar to the division of your children, you need to reach some sort of property agreement with or without court involvement. We’ll cover each of these items in turn in a later section of this article.

 

The legal requirements for divorce

Here in Australia, guided by the Family Law Act 1975, the courts do not take into account which partner is responsible for the marriage breakdown. To divorce your partner, therefore, the only ground for divorce is demonstrated by 12 months separation from your partner.

If you’ve been living in the same house as your partner, rest assured, there are many ways to prove you’ve been separated for 12 months.

You are legally allowed to live under the same roof as your partner for the last twelve months, and still be considered separated, so long as you’re able to meet the specified criteria and give evidence. You and your spouse simply must prove that you:

  • Live in separate rooms;
  • Cease all sexual activity;
  • Have separate bank accounts;
  • Not share meals or recreational activities; and
  • Present yourselves as separated to friends, relatives and neighbours.

Second to your twelve month separation, as you apply, you will need to show the courts that the relationship has broken up irretrievably. This can be proved in one of five ways:

  • Adultery;
  • Unreasonable behaviour from your partner – including drug and alcohol abuse in the home, emotional, physical or sexual abuse – to the extent that you cannot be expected to live with your partner;
  • Your partner has deserted you for a period of 2 or more years;
  • You’ve lived separately for more than 2 years and your partner agrees to the divorce; and
  • You have lived separately for more than 5 years.

 

Settling your separation outside the courts

To apply for a divorce, you can either apply for the divorce yourself, or have a lawyer do it for you. The reality is such that most marriages today are unable to end in a one-two-step process, because there are any number of financial assets, properties, and children linked to either person that need to be divided equitably. Handling separation of a marriage, finances, and children in court can be an expensive and intrusive process, which limits the control you may have over the final outcome.

It is always recommended to try to reach some sort of agreement outside of court where possible. Working with a legal representative to handle your separation and your entitlements offers a cheaper alternative that, with the strength of a reputable lawyer, can see you and your children relatively unscathed from the separation in half as much time.

 

Step One: Compulsory Family Dispute Resolution (Mediation) with Relationships Australia

It is now a compulsory requirement of the Australian Government that people who look to go to court to resolve disputes in relation to parenting arrangements, financial arrangements, or property settlement from a separation; are now required to attend Family Dispute Resolution (FDR) with Relationships Australia to make a ‘genuine effort’ to resolve their disputes.

The process of FDR with Relationships Australia involves FDR Practitioners providing you and your former partner an environment to encourage open conversation to work through your issues and come up with acceptable solutions and mutually beneficial agreements.

If for whatever reason, or particularly in the case of violent or abusive family relationships or homes affected by drug and alcohol abuse, you and your former partner are unable to come to an agreement, there are alternative legal options you can take, including mediation with a neutral third party, divorce settlement with a legal representative, or going to court.

 

Mediation

Marriage breakups that are the result of unreasonable, violent or abusive relationships can be particularly tense at the time of separation. Such tensions can make it incredibly difficult for either partner to amicably agree to the particulars of a divorce settlement.

In these instances, a neutral third party, the mediator, is brought on board to offer refined expertise in the issues currently obstructing the settlement process. The mediator is skilled at opening up the lines of communication, helping either party to reach definite agreements.

While more costly than settling the separation independently, mediation offers a highly structured process to allow you to achieve a confidential settlement outside of court.

 

Divorce Settlement

If you and your husband can amicably reach an agreement on “who gets what”, engaging a legal representative to settle your divorce informally out of court is the best way to go.

A Divorce Settlement is the final legal arrangement between two adults filing for divorce. Items that are covered in a divorce settlement include child support and visitation, health and life insurance, real estate, cars, household items, bank accounts, debts, investments, retirement plans, pensions and so on.

Legal representatives of the husband and wife will manage the settlement process – much like a roundtable discussion – whereby either legal representation will vie for the rights and demands of their respective client.

In doing so, hard evidence bears more weight than hearsay or speculation. In mounting evidence against your partner – whether it’s against an unfaithful partner, an abusive partner, or a partner you suspect may be withholding assets, income or employment, there is only so much you can know. Depending on the alleged behaviour your partner, the option is there to hire a private investigator to mount solid evidence against your partner.

 

Going to Court

Each divorce case is unique – and some certainly have it easier than others. The decision of whether to litigate or settle your divorce depends on the complexity of the case.

While reaching a settlement outside of court is a better option for most, settlements are simply not appropriate for some – particularly in the case that you or your children have been the victims of prolonged abuse or domestic violence.

If you and your partner are unable to reach an agreement, and you feel you have the financial means, emotional strength, and willingness to hand over control to a judge, having your case heard in the courts may be a viable option. For more information, you can find resource kits via the Family Law Court.

 

Who gets what?

Assessing and legally deciding the entitlements of either partner in the relationship are determined by a number of factors.

Whether you handle the matter independently and try to settle, or take the matter of your separation to court, your legal representative will be looking at the contribution of either spouse to the relationship, their child’s life, and the ability of either spouse to care for themselves and their children as a result.

These factors are included in Section 75 of the Family Law Act, and include:

  • The length of the relationship;
  • Health of parties;
  • Age of parties;
  • Number of children;
  • Whether the children are below the age of 18, above the age of 18, or above the age of 18 but still living at home and thus considered as dependents;
  • The earning capacity of the male and female;
  • The primary caregiver of the children;
  • The financial resources that one party has over another – including superannuation;
  • The value of assets, liabilities;
  • The net financial contributions of either party; and
  • The net (non-financial) contributions of either party.
  • Based on these factors and more, either legal representative will advise accordingly.

 

Who Will Get Custody of the Child?

Where will your children live and how will they see both parents?

The granting of a divorce does not determine the custody of your children, maintenance or property. In today’s courts, it is no longer assumed that custody will go to the mother of the child. The Family Law Act 1975 requires the court to regard the best interests of the child as the most important consideration.

Before you take child custody matters to court, it is required that you make a genuine effort to resolve the dispute through counselling or mediation, and make reasonable efforts to communicate with your spouse about the matter of your child or children’s custody. Where an agreement cannot be reached, custody arrangements are made through the Family Law Court to determine:

  • Who your child will live with;
  • When and if your child will spend time with the other parent; and
  • Which parent is responsible for different areas of your child’s upbringing.

The courts not only look at the best interests of the child, but whether or not there is a history of spousal abuse, violence or erratic behaviour. Factors that are considered when determining child custody include:

  • A parent’s ability to provide for their children financially and emotionally;
  • An older child’s relationship with both parents and their personal desire to stay with a parent;
  • A parent’s lifestyle and parenting history;
  • The child’s right to engage with and to enjoy their cultural heritage;
  • Any practical difficulties that may prohibit parents from being able to spend time with their children; and
  • Whether each parent agrees to engage the other in any significant decisions that may affect the life of the child.

 

How Will Property and Finances be divided?

If you are thick in the process of a divorce from your partner, you no doubt have to deal with the financial ramifications of a separation. How will I manage financially? How will our joint house, our joint bank accounts, or our joint debts be divided?

Alongside handling the divorce itself and the custody of children in a relationship, property must be divided and all assets split, including your home, investment properties and cars that have been bought over the course of the relationship.

Similar to most family matters, you want to handle property disputes outside of court if you can manage it. Your legal representative can work through your property agreement to, where possible and applicable, reach a considered and even distribution of property resources.

Your property entitlements will be considered based on:

  • The assets you and your partner walked into the relationship with; including property, investments and business;
  • The net value of your current assets, including the value of property such as houses, shares and cars; and
  • Each person’s contributions over the course of the relationship – which include direct financial contributions (your wage, payments earned off properties or improvements made to properties), and indirect financial contributions (gifts, inheritances or the regular payment of household expenses).

 

Brave the battle head-on

Always keep in mind that successful negotiation requires us to use as much finesse as we can muster – best achieved by face-to-face negotiation.

If you have the strength to file for a divorce from an unhealthy or abusive relationship, or if you have unexpectedly been thrown into the thick of the separation process, do not despair and don’t fall for the hype. You have built a life with your partner, and now in the midst of separation, you are entitled to equal share of the life you built.

If you’re facing a divorce, seeking an experienced legal representative might be the best weapon you have to face the battle front-on.

To seek legal representation in the midst of a messy breakup, start by contacting Christine Manolakos, Principal Solicitor at CM Lawyers, to assess your entitlements and the appropriate next-steps.

  • Kat Kendry

    Divorce – can i use my super and half of our savings to live on or if that all gets stopped till it’s all clear ?

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