Separating? - 10 things you should know
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Separating? 10 Things You Should Know
1. Children
The familiar
terms custody and access are no longer used in family law. Instead, the Court makes orders about parental
responsibility and about who children live with and spend time with. In most
cases both parents will have equal shared parental responsibility. This means parents need to make decisions
together about long term issues affecting children, such as education, health
and religion.
2. Court Orders
about children
If both parents agree on when children live with and
spend time with each parent, Court Orders can be obtained by consent, making
those arrangements legally binding. Neither parent needs to attend Court to
have the Orders made. Some parents prefer not to have Court Orders, so they can
keep arrangements for children as flexible as possible. If parents cannot agree
on arrangements for children, even after assistance from counselling or
mediation services, the Family Court can decide those arrangements.
3. Child support
After
separation, it is usual for one parent to pay the other parent child support.
This is their contribution to the day to day costs of raising the children.
Parents can reach their own agreement about the amount of child support or have
the amount calculated by the Child Support Agency. Try the estimator on the Child Support Agency
website at www.csa.gov.au to see how much child support you will receive or pay
under a Child Support Agency assessment.
4. Spousal maintenance
In some
situations, one spouse may have to pay the other spousal maintenance. (You may
know this better as “alimony”, often mentioned in American television
shows.) Spousal maintenance is not an
automatic entitlement. It can be paid by agreement or by Court Order. The Court will only order spousal maintenance
where one spouse does not have sufficient income to meet their living expenses,
and the other spouse can reasonably afford to assist financially. Maintenance
can also be ordered between de facto partners.
5. Property
settlements
Separated couples (married or de facto) can divide their
property between them any way that they like, as long as they can agree on the
division. If they cannot agree, they can ask the Court to decide their property
settlement. In deciding a property settlement, the Court considers the financial
and non-financial contributions that each party has made during the
relationship. The Court also considers the ‘future needs’ of each party, such
as whether one party needs more of the assets because they are caring for
children or because they have a lower earning capacity.
6. Superannuation
In most
cases, superannuation can be split as part of any property settlement. This
means moving some superannuation from one partner’s superannuation account into
the other partner’s superannuation account. Alternatively, one partner can keep
more of the superannuation and the other can keep more of the other assets to
offset this.
7. Complex financial settlements
Settlements can be more complicated if there is a family
trust or family business. If one partner retains the trust or business, care
must to be taken to properly remove the other partner from that entity. The partner stepping out of the entity needs
to be protected against any future liabilities of the trust or business.
Consideration needs to be given to taxation implications including family trust
elections.
8. Divorce
You need to be
separated for 12 months before you can apply for a divorce. If you want to apply for a divorce yourself,
you can download an application kit from the Federal Magistrates Court website
at www.fmc.gov.au. If you and your spouse lived in the same
house for some time after you separated, the application process is more
complicated and you may need legal assistance to prepare your application.
9. Timing
of property settlement
If
you have been married, there is no need to wait until you are divorced before
organising your property settlement. However, once you obtain your divorce, you
usually only have 12 months to apply to the Court for a property settlement or
for spousal maintenance. If you have been in a de facto relationship, any
application to the Court for property settlement or maintenance must be made
within 2 years of separation.
10. Seeing a lawyer does not mean that your
matter will end up in Court
Most children’s arrangements and financial settlements can be agreed through
lawyer assisted negotiations or other means. Seeing a lawyer to discuss your
options can help you make informed decisions and make negotiations with your
partner easier for you. Often, people do not want to negotiate directly with
their partner. We will talk to you about
a range of processes that can be used to achieve an agreement.