Once you have decided to separate and to divide your property, it is important that you obtain legal advice as to your options, and the basic process of a divorce property settlement. If you believe you can come to an amicable division of your property, there is no need to go to separate lawyers for this initial advice. Coming to an amicable agreement will save you time, stress and legal costs. There are four steps set out below to make it easier for you to understand the process and to prepare for an appointment with your lawyer, and be familiar with the documents you will need to produce.
The First Step – Ascertain the Assets and Liabilities
Firstly you must ascertain what makes up the pool of assets, and the equity in those assets that are to be divided between you. So make a list of the assets, a list of the liabilities, deduct the liabilities from the assets – and the result is the equity you have in the property you both own.
To be able to move forward with your settlement negotiations, you must agree on asset values. If there is any dispute you must both agree on, and appoint, a registered valuer for real estate, contents, business etc.
The Family Law Act provides that both parties must make “full and frank disclosure” of all of their assets and liabilities, and this is done by producing documentary evidence such as bank statements, superannuation member statements, payslips, tax returns, company financial statements, mortgage statements, loan statements, credit card statements etc. It will save time if you can gather this evidence at an early stage, and ensure that copies are provided to your former partner.
Once values of assets and liabilities are agreed upon a Balance Sheet can be prepared, and it is easy to see the amount of equity held, or the size of the “pie” that is to be divided.
The Second Step – Contributions (Financial and Non-Financial)
Financial contributions will include the assets each party brought into the relationship, their income from employment or a business, and lump sums received by way of redundancy or termination payments, compensation payments, inheritances, windfalls etc. The time when these lump sums came in is important, also how the payments were used – if they were used to increase assets such as decreasing a mortgage or renovating a property, they will carry more weight than if they were used to pay joint debts or to go on a holiday. Lump sums that came in early in a relationship will carry less weight as time elapses, particularly if it was a long relationship. It is unlikely that a credit would be given for the whole of the lump sum contribution unless it came in at the very end of the relationship.
Non financial contributions include the roles of parent and homemaker, and maintenance of assets such as real estate etc.
The Third Step – Future Needs Factor
This step considers whether one party has a greater future need than the other, and whether there should be an adjustment in that person’s favour. In other words, in cases where there is a long relationship (10 years or more) the starting point is often a 50/50 division of assets, so that an adjustment may result in one partner receiving more than 50% and the other receiving less.
The factors to be considered are whether
- there are very young children to be cared for, so the parent is unable to work on a full time basis;
- if one partner has been a full time carer of very young children and needs to retrain to return to employment;
- whether one partner received a much larger income than the other and will therefore recover more quickly from the property settlement;
- whether one party may have put their career on hold so the other partner could progress in their career;
- whether the parties relocated on a regular basis to progress the career of one of them and the other partner was unable to be employed (sometimes this occurs in the Defence Forces, the teaching profession or in corporations).
Contact Online Divorce Lawyer by phone or email and save yourself time, stress and legal costs. If you just want to chat to someone who understands how overwhelming this process can be, we offer a complimentary 15 minute chat with Lyn to give some initial advice and guidance as to what you need to do next. So whether you are thinking about separating, or have already separated and negotiating a division of your property, we are here to help you.
Our Packages
Preparing Documents Package
Preparing Documents Package – $2,750 inc gst
Divorce Property Settlement (includes De facto relationships)
This package contains all work in preparing your documentation including, but not limited to :
- Attending to your initial enquiry, taking your instructions and confirming that you both have reached agreement on the division of your property.
- Sending Information Forms to both parties to complete and return to us with disclosure documentation (copies of super statements, bank statements, proof of shareholdings etc)
- Perusing replies on Information Form, checking disclosure documents and drafting Balance Sheet showing assets and liabilities
- Email to you confirming your instructions, further advising on the divorce settlement process and requesting any additional financial disclosure documents that we require
- Noting if there is any dispute as to valuation of assets (eg real estate business, etc) and advising you to appoint an agreed joint valuer to value these assets, alternatively arrange a short mediation to investigate if agreement can be reached on any disputed valuation
- Perusing any valuations and making any necessary amendments to Balance Sheet of assets and liabilities
- If relevant, obtaining confirmation of superannuation entitlements from your Funds
- Short mediation sessions with you (via telephone or Skype link) to reach a final agreement on the division of property once all valuations are obtained and agreed
- Finalising Balance Sheet of assets and liabilities, then drafting your Agreement
- Forwarding first draft of Agreement to both parties for approval
- Forwarding copy first draft Agreement to relevant Superannuation Fund for approval (only if there is to be a superannuation split)
- Replying to any queries you may direct to us in relation to the first draft
- Making any amendments and forwarding final draft of Agreement for approval
- Negotiating any agreed final amendments and completing final Agreement
- Forwarding Agreement to one party with full instructions for signing and returning to us, completing Certificate of Independent Advice
- Forwarding signed Agreement to the other party with full instructions to obtain independent advice from a family lawyer and to sign document, and return to us.
- Providing certified copies of Agreement to both parties to keep for records, filing original in our office for safe keeping.
- Includes all letters, emails, faxes, landline/mobile/Skype communications to both parties.
These costs are negotiable, depending on the work to be undertaken in your particular property settlement
Cohabitation Agreement (Pre-Cohabitation/Marriage or Pre-Separation)
This package contains all work in preparing your documentation including, but not limited to :
- Attending to your initial enquiry, taking your instructions and confirming that you both have reached agreement on the assets and liabilities you each brought into the relationship, and what you will retain if the relationship breaks down
- Sending Information Forms to both parties to complete and return to us with disclosure documentation as at the start of the relationship (market appraisals of real estate, copies of super statements, bank statements, proof of shareholdings etc.), and seeking instructions about clauses to be added to the agreement in the event of changes in circumstances (eg birth of children, periods of unemployment or inability to earn an income, receipt of an inheritance etc) and explaining the benefits of updating the agreement when circumstances change
- Perusing replies on Information Form, checking disclosure documents and drafting Balance Sheet showing assets and liabilities at start of relationship
- Long letter to you confirming your instructions, further advising on the process and requesting any additional disclosure documents or information that we require
- Noting if there is any dispute as to valuation of assets (eg real estate, business, etc) and advising you to appoint an agreed joint valuer to value these assets, alternatively arrange a short mediation to investigate if agreement can be reached on any disputed valuation
- Perusing any valuations and making any necessary amendments to Balance Sheet of assets and liabilities
- If relevant, obtaining confirmation of superannuation entitlements from your Funds
- Mediation session with you (via telephone or Skype link) to reach a final agreement on the assets and liabilities, once all valuations are obtained and agreed, the agreement as to retention of assets and liabilities if the relationship breaks down and contingencies during the relationship.
- Finalising Balance Sheet of assets and liabilities, then drafting your Agreement
- Forwarding first draft of Agreement to both parties for approval
- Replying to any queries you may direct to us in relation to the first draft
- Making any amendments and forwarding final draft of Agreement for approval
- Negotiating any agreed final amendments and completing final Agreement
- Forwarding Agreement to one party with full instructions for signing and returning to us, completing Certificate of Independent Advice
- Forwarding signed Agreement to the other party with full instructions to obtain independent advice from a family lawyer and to sign document, and return Agreement to us
- Providing certified copy Agreement to both parties to keep for records, filing original document in our office for safekeeping
- Includes all letters, emails, faxes and landline/mobile/Skype communications to both parties
These costs are negotiable, depending on the work to be undertaken in your particular property settlement.
Costs are generally shared between the parties, unless otherwise by agreement.
Transferring Assets Package
Tranferring Assets Package – $550 inc gst
This package contains all work in transferring assets to finalise your property settlement including, but not limited, to :
- Forwarding copy Agreement to relevant Superannuation Fund with instructions to proceed with superannuation split
- Attending to transfer of real estate including stamping documents exempt from stamp duty and keeping records for Office of State Revenue
- Communicating and liaising with relevant mortgagee and attending to any discharge of mortgage settlement
- Attending to, or assisting you to, transfer of other assets including shares, bank accounts, motor vehicles etc.
- Communicating and liaising with relevant mortgagee and attending to any discharge of mortgage settlement
- Arranging for any settlement involving cash payment/s to one or both parties.
These costs are negotiable depending on the assets to be transferred. Costs are generally shared equally by the parties, or otherwise by agreement.
We will also act for you in the preparation of contracts for the sale of real estate. This cost can be negotiated with you at the time, and will depend on where the real estate is located.
Looking to the Future Package
Looking to the future package – $440 inc gst
When you have assets in your sole name, it is important to protect those assets and plan for the future, so we encourage you to instruct us to prepare the three most important documents you will sign. We compare these documents to insurance policies, you hope you never need them, but if the time arrives when you do, you (and your family) will be very glad you arranged for them to be prepared.
- Your Will makes provision for how you want to divide your assets between your beneficiaries. You need to appoint an executor or executors who will administer your estate after your death – ie follow the instructions in your Will and distribute assets to your beneficiaries. According to your assets and liabilities at the time, we will discuss with you the most appropriate clauses to include in your Will. This is a document that you should review on a regular basis, and instruct us to amend the Will whenever your circumstances change.If you die intestate (ie you do not have a Will), the process of administering your estate may be delayed and could become a costly exercise for your family.
- A Power of Attorney is an important document where you appoint trusted family members or friends to take over your financial matters, should you become incapable of managing them. Your Attorney will be able to deal with all of your assets in the same manner that you can, such as dealing with bank accounts, shares, superannuation. They can also sell or purchase real estate.If you have not appointed an Attorney and you become incapable of managing your financial affairs, then a family member can apply to the Guardianship Tribunal to be appointed as your Financial Manager. They will be able to deal with your income and pay your bills, but the Protective Office will take over the majority of your assets and administer them until your death, with little input from your family. You must have capacity to sign a Power of Attorney, so don’t leave it until it is too late.
- An Appointment of Enduring Guardian is an important document where you appoint a trusted family member or friend to make decisions for you in relation to your health and lifestyle issues, if you become incapable of making these decisions. If you are not able to make decisions as to where you live, the health care you receive, other personal services for you, and consent to medical and dental treatments, then your Guardian can make these decisions for you. If you do not appoint a guardian and you become incapable of making these decisions, the Public Guardian is likely to be appointed to make these decisions for you, rather than family members.
[The above advice relates to New South Wales legislation, however similar legislation exists in all Australian States.]
The cost of the Looking to the Future package includes documentation for one of you. If both parties one require these three documents to be prepared, the cost is ($880).
All costs quoted above include gst