Frequently Asked Questions
We know you have lots of questions, so make yourself a cup of tea or coffee, relax, and read through the information below. If you have other questions, do not hesitate to email us at firstname.lastname@example.org (or go to our Contact Us page) and we will reply as soon as possible.
Our Divorce Property Settlement Packages
How does the package work? If you have finally separated, and have reached agreement on the division of your assets and liabilities (or have come close to an agreement), we can assist you to follow the process required under the Family Law Act to legally divide your assets. We do this for a fixed fee. Both parties are able to give us instructions to prepare documents and transfer assets etc., one party must be independently advised by a Family Lawyer when the time comes to sign the relevant agreement. We do not act for you if you do not agree on a settlement and the matter is likely to progress to the Family Court or Federal Circuit Court.
If you want to proceed with a Binding Financial Agreement (sometimes called a Pre Nuptial Agreement) prior to commencing a relationship, or during a defacto relationship, in order to protect the assets you contributed, we can also assist with this process. Having this document in place will save any dispute if the relationship is not successful.
Our Divorce Property Settlement Packages FAQs
How can the Package help us if we live in different Australian States?
The Family Law Act is Federal legislation, which means that it applies throughout Australia. The process of negotiating and formalising a property settlement is the same in each State.
How do we communicate with you?
With advanced electronic and telephone services, we can communicate with you by email, by fax or by telephone/Skype. Mediations, if they are required, can be arranged via telephone conference, or preferably through Skype (a free Voice over Internet Protocol service).
What is the first step to get things moving?
Contact our office at email@example.com (or through the Contact Us page on our website) and we will send Information Forms for each of you to complete and send back to us. This information will assist us to advise you on any documents that each party must have access to, in order to prove the value of your assets and liabilities. We can then prepare a Balance Sheet of the assets and liabilities. The information you provide will also give us a short history of the relationship which is included in your final agreement.
What happens next?
We write to you confirming your instructions, and explaining the relevant sections of the Family Law Act, and the requirements of calculating a property settlement. If further documents are to be produced, we make arrangements for you (or us) to obtain them.
Why do we have to have a mediation?
A mediation may not be required, but it will be of benefit if there are any “loose ends” to be finalized. It is also an opportunity to discuss arrangements to be made for the children, if this is relevant.
What legal documents need to be prepared?
There are two ways of formalizing your agreement.
- The first alternative is the preparation of a Binding Financial Agreement which sets out the history of the relationship, the contributions made by each of the parties (financial and non-financial), lists the assets and liabilities, and how these are to be divided. It is not a legal document, and therefore not enforceable, unless each party has been independently advised. It will be necessary to arrange for one of you to see an independent Family Lawyer for this purpose.
- The second alternative is the preparation of an Application for Consent Orders and Terms of Settlement. These documents are filed in the Family Court for approval. There is a filing fee, but no appearances are required by the parties or their lawyer. Again it will be necessary to arrange for one of you to see an independent Family Lawyer for the purpose of advice on signing the documents. These documents are then filed in the Family Court to be approved, which may take from two to four weeks.
What happens after the documents are signed?
Once the Binding Financial Agreement is signed, or the Application for Consent Orders approved by the Court, it is then time to put your agreement into effect. We assist you to transfer or sell real estate , to instruct your super fund to split part of your entitlement to your former partner, to transfer bank accounts, motor vehicles, shares etc. We can liaise with your accountant in relation to transfer of business assets. In other words, we assist you to bring your property settlement to a close .
Why should we then review our estate planning documents?
If assets are to be transferred, it is important that you review your Will, particularly if there are children of the relationship, and to ensure that your wishes are carried out in the event of your death. If there are assets transferred into your sole name, it is essential that you sign a Power of Attorney which will appoint a trusted friend or family member to manage your financial affairs, if you become incapable of doing so. With an Appointment of Enduring Guardian you can nominate someone to make health and lifestyle decisions if you are totally incapable of making those decisions. Your Will is not effective until you die, however the Power of Attorney and Appointment of Enduring Guardian are only effective when you are alive, and will make the process easier for your family to cope, and “keep the wheels turning” in relation to your financial and health matters.
We get the picture, what do we do now?
Just send an email through our website firstname.lastname@example.org so we can send the Package to you. It’s as easy as that….we’ll do the rest.
I’ve heard of a Friendly Divorce – how does that work?
This may sound like an oxymoron, but separated partners who are sensible about their divorce property settlement, and who want to save on huge legal costs, are able to reach a compromise about their property settlement without going to court.
How do we tell the children we are separating?
This is probably one of the hardest things you will have to do, and it will depend on the ages of the children, and their understanding of how it will effect their future. Kids often feel they are to blame for parents deciding to separate, so it is important to reassure them of your love, and that they will always be able to spend time with both parents.
How do we get a Friendly Divorce?
Online Divorce Lawyer only assists separated partners who can agree on their property division, in other words there is no dispute or conflict as to who gets what. We draft the relevant documents, help with the transfer of assets and then draft your estate planning documents (Will, Power of Attorney etc.) And we do that work for a fixed fee, so you have certainty as to your legal costs.
What are the benefits to us of a Friendly Divorce?
The first benefit is a saving of legal costs because we are able to act for both parties. It also means that you should retain a civil relationship with your former partner which will make the lives of your children more bearable. It also helps in the grieving process, because we all go through a period of loss of a person we once loved and a future we planned together. Instead of a hostile settlement which will leave both of you exhausted, stressed and with less assets, a friendly divorce will allow both of you to move on with your lives much sooner, and you’ll retain more of the asset pool.
What are the benefits to our children and family of a Friendly Divorce?
There is a huge ripple effect of a divorce over children, but if their parents can remain friends this can make a big difference to their children. Their extended family are effected as grandparents fear they will not see grandchildren as often, as will cousins, aunts and uncle. Friends are often devastated about a divorce, and suffer about which partner they should support. With a friendly divorce it is much easier for family and friends to adjust as they realise that although things will be different for you, you can a least remain friends.
When can we start a divorce property settlement?
At any time after you separate. Some separated partners want to start the process as soon as they separate, others need some time to think about their property division. The only limit on time is that a property settlement should be finalised before the first anniversary of your divorce. If it is not, you need to seek the leave of the court especially if there is no agreement as to a division and an application is to be made to the court.
What if we can’t agree on a property settlement?
If there is dispute as to a division of property, you are heading down a very stressful road that could cost you thousands of dollars. You should firstly obtain legal advice from a competent and experienced Family Lawyer who can explain the process and the division you may receive (this advice is based on your instructions only). As a Mediator, I frequently see the benefits of separating couples attending a mediation session when they can discuss their property division face to face, with their lawyers and with an independent third party mediator who will facilitate the discussion.
When can we file a Divorce Application?
A Divorce Application is a different process to a Divorce Property Settlement. A Property Settlement is the division of the marital assets and liabilities, a Divorce is the legal severing of the marriage. You have to be separated for one year and a day before a Divorce Application can be filed. A joint application can be made by both parties, and a Divorce Kit can be downloaded from the Family Court site.
Do we have to appear in court when we apply for a divorce?
If there are no minor children of the marriage, there is no need for either party to appear on the hearing date. However if there are minor children, and a joint application is made, there is no need to appear.
Who has to leave the house when we decide to separate?
If there are young children of the relationship, the ideal situation is for them to remain in the house with the parent most able to care for them. However it is a difficult situation, and every case is different. Finance can become a problem if one party needs to find rental accommodation, and the question arises as to how the mortgage is then to be serviced. For financial reasons some couples remain separated under the one roof, however this can create a stressful situation that is not in the best interests of the parties, and especially the children. There is no easy answer.
Can I buy out my former partner’s interest in the house?
This will depend on the other assets to be divided, and your ability to refinance the loan in your own name. You should make an application to a lender to enquire as to whether this is possible, and then discuss this proposal as part of your property settlement.
Do I have to divide any of my superannuation entitlements?
Again this depends on the asset pool. There is not always a split of superannuation to a former partner, especially if there are other assets that can be divided so that the property settlement is fair and equitable.
If it is a while since we separated, what assets should be included?
The Family Law Act provides that each party must make full and frank disclosure of all of their assets at the time the settlement is being processed. However if there are post-separation acquisitions or sales of assets, these will be taken into consideration in the overall division.
I received an inheritance after we separated. Do I have to include this in the property settlement?
It must be disclosed, as provided in the Family Law Act, as part of your assets. Depending on the amount of the inheritance, it may be dealt with under Section 75(2) of the Act which considers the future needs of both parties.
Do we have to agree to shared care of the children?
Amendments to the Family Law Act in 2006 provided that shared care was the starting point in children’s residence issues. Many separated parents can agree on shared care, if they believe it is in the best interests of the children, and if they can agree to flexible arrangements. Any decision by a court will be based on the best interests of children, and again any application to a court may cost thousands of dollars, and cause a great deal of distress to the parents and the children.
How do we save costs with a Friendly Divorce?
If separated partners cannot agree on a division of their property, then it is necessary to file an application in the court, and for a judicial officer to make a decision. This process could go on for a couple of years, and may cost you thousands of dollars. By avoiding this road (having your day in court can be very stressful and there is no guarantee you will get what you believe you should) we can save you thousands of dollars in legal costs, because we work for a fixed fee.
For other questions, please email us through our Contact Us page