Financial & Property Settlements
There are many complicated issues that come up during a divorce, but the division of property is one of the most difficult to navigate. Indeed, dividing your possessions with your former spouse during a divorce can be complex, confusing, and emotionally draining.
However, dealing with the property settlement is an important part of the process. This is because there are so many things that have to be considered when dividing assets and debts between two people who used to share everything.
It’s important for both parties involved in the separation to understand what will happen with their property settlement before they actually go through it. When dividing property, like bank accounts, real estate, vehicles, and other types of assets, you want an experienced lawyer to help guide you.
You don’t have to go through this alone. Our team of experts will walk you through every step of the process so that you’re confident about what’s happening at all times.
This article will explain the important things you need to know about property settlements during a divorce.
Who Needs Property Settlement
If you are separated or divorced from your spouse or de facto partner, then you may divide your property. You can do this by creating an agreement between the parties, using family dispute resolution, or by going to court.
Regardless of which route you take, we recommend getting legal counsel before signing any agreement.
What can be Divided?
Almost any property can be divided, whether it is owned jointly or not. This includes such things as:
- investments, stocks, and bonds
- real estate
- insurance policies
- tangible assets like cars, furniture, and jewelry
- debts like loans, mortgages, and credit cards
It does not matter who bought the item or whose name is on the ownership documents – you should consider all marital assets.
The family home is often an area of particular concern. Even if you move out of the house, you do not lose your right to a portion of the value. The agreement or order will move assets around to ensure that it fairly compensates the person who does not get the house.
Superannuations are often large assets that are paid in the future. Those, too, may be split so they go to the other party. Complexities in the law like this make it a wise decision to get legal advice when contemplating a property settlement.
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How an Agreement Works?
There are four basic types of property agreements: informal agreements, financial agreements, consent orders, and financial orders.
These are unenforceable agreements made between the two parties. We do not recommend setting up informal agreements, because your former partner can renege without legal repercussions.
Instead, we recommend putting a financial agreement or consent order in place. These have legal authority behind them so your interests are protected.
You can make financial agreements before, during, or after a relationship. This document describes how your property will be divided upon the end of the relationship.
In order to be enforceable, both parties must obtain independent legal advice about how the agreement will affect their rights and whether it is to their advantage to sign. Then the parties must both sign the agreement.
Once this occurs, you can divide the property in line with the agreement. There is no requirement to go to court in order to execute the agreement.
Financial agreements can be ended or changed as long as both parties agree and, once again, get legal advice.
Outside of this, the court will enforce the agreement unless:
- it was fraudulent or unethical or unfair
- the agreement is impractical
- there is a major change that was unforeseen
- the other party has not complied with their obligations
- the property was taken because it was obtained criminally
The court approves the consent order, but it is an agreement between the ex-partners. It has the same force as any other court order and can cover property division or financial maintenance.
Before the court will approve a consent order, it has to believe that the terms are fair to both parties per the Commonwealth Family Law Act of 1975. They also want to ensure this is the “final” property order so there is no need for further legal proceedings.
Changing a consent order requires a similar set of circumstances as setting aside a financial agreement.
The court, in a financial order, can order a party to:
- pay money or maintenance
- sell or transfer property (including real estate such as the family home)
- sign legal documents
- split superannuation
Because this is a court-ordered mandate, all parties must follow it. Knowing this, the court makes every effort to be fair to everyone involved. As such, they look to the future needs of both parties and how each contributed during the marriage.
During the process, the court identifies what property exists and how much it is worth. It then evaluates the financial and non-financial contributions made by both parties. Non-financial contributions include child-rearing and homemaking. Financial contributions include income, savings, inheritances, and gifts.
The court also looks at other factors such as future earning potential, age and health, child support and similar responsibilities, and the length of the relationship.
The court examines all of these considerations as part of its analysis before finalizing the financial order.
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The court will only accept a consent order or financial order if the parties make the application within a year of the divorce or two years from the date a de facto relationship ends.
No matter what, you should absolutely not enter into any sort of financial arrangements without legal advice. Your lawyer can help you work out an agreement as well as explain your rights.
Divorce Property Settlement in Melbourne
Divorce is an arduous process. It’s not just the emotional toll that comes with ending a marriage, but also the financial and legal ramifications of dividing property.
That’s why it’s important to have an experienced lawyer on your side during this time.
If you have questions about how to divide your assets, it’s best to consult with an attorney rather than make any decisions on your own.
Our law firm has been handling these cases for more than 20 years, and we know what we are doing when it comes to property settlements. We will work hard to make sure you get what you deserve in terms of assets and finances after your divorce is finalised.
You deserve an experienced team on your side during this difficult time in your life. Let us handle the legal aspects of your property settlement so you can focus on what matters most – yourself and your family’s future.