After a separation

Help! I need an action plan after a separation. What happens next? 

None of us are educated in this area until we've gone through it and when you have all sorts of information coming from well meaning family and friends it can become confusing. We don't want confrontation but when we don't know what to do next it causes us to become stuck. 

The best advice I received while stuck after my second separation was…

"STICK TO THE FACTS TO AVOID THE FEELINGS" 

This line empowered me to eventually finalise the agreement without the need of my lawyer. I had spent enough on negotiations and was able to complete it myself using the facts. I also used letters already sent as templates to continue correspondence with my ex-partners lawyer to resolve. 

Here are some things I learned going through this process twice. One was a private agreement thankfully, the other involved lawyers. It may be helpful to communicate these to your ex-partner so they’re also aware of responsibility and options going forward to hopefully avoid legal costs.

Where do I start?

- What is needed to move on? 

An agreement.     

How do you both come to an agreement?

Negotiation is needed.  Among yourself if possible.

Discuss with your ex;

What the future looks like and what responsibilities you both think are fair to be able to move forward independently. This will be difficult if one has control or anger issues or is in denial about what is happening. If they don’t wish to communicate make your last communication with them a clear outline of the legal guidelines that will follow if they choose not to negotiate like an adult. 

There are 2 distinct areas of separation. Children and property. When a separation occurs and involves children and/or property both of you need to be able to agree on a plan going forward. Often one is angrier than the other making it hard to communicate the next steps but this is something that needs to be finalised 24 months after separation and 12 months following a divorce. 

To move on we need to come to an ‘agreement’ to apply for a court order and this is what is legally needed to finalise, married or de facto. It is called a 'binding financial agreement' under the Family Law Act 1975.

 https://www.fcfcoa.gov.au/fl/forms/app-consent-kit

Click on link above. Save and print it out to look over and gather required information to process in advance.

Even if you both agree without needing a legal professional, a court order for this agreement is required after a separation to legally bind the financial, custody and support division. A private agreement needs to be sealed by the family court to avoid further claim to each other’s property in the future. You can both apply by filling out the application form. You do not need to attend court for this process. If your finances are more involved but you have both agreed on the division, you can engage a legal professional  just to apply for this court order on your behalf and will cost around $3000 to be done. 

1.     CHILDREN.

Financial divisions can be finalised on a ratio up to 70/30 when children are involved. 70 for the parent who will have main care of children but 60/40 is common. Child support payments are calculated based on caring percentages and incomes of both parents. Discuss this to find each other’s capability of providing care for the children going forward. - Keep all conversations focused on your child when solving issues not each other to avoid blame and get it solved. The family law act focuses on the rights of your children and each parent’s responsibility rather than their parental rights. Keep this in mind when responding to anything you feel is a threat causing you to give in. Hold strong with the solution in mind.

2.    PROPERTY.

When it comes to property, if neither partner is able to buy the other out of the home by refinancing the home mortgage alone, it must be sold so both are able to move on financially. Again, discuss each other’s capability to do so to find your next steps. 

If your ex is not willing to negotiate with you like an adult, lawyers will need to be engaged both using funds from the current combined asset pool equally or by paying independently if possible. If both agree to use funds from the asset pool it will be calculated in the division. If not in agreement to both pay lawyers fairly from a joint account, paying for this service individually allows the asset pool to be calculated without another item being included in the division. It’s just cleaner but rarely agreed to. 

NOTE - Legal aid is only available for child custody matters, not property matters so if you have shared any property (which is legally everything when a couple) you may need to hire a lawyer dealing in property division to resolve this agreement separately. 

What happens when legal professionals are hired?

Full financial disclosure will need to be made.

This means you will both need to gather your own and combined financial documents to present to each lawyer. These are the financial facts used in the negotiation between both parties to determine a solution and will determine the shared 'asset pool'.

Lawyers will take all contributions to the household into consideration to determine who gets what amount. Contributions considered will be;

*Personal and joint assets & debt

*Expenses/bills paid

*Income capabilities present and future

*Care of children

*Duties/maintenance performed around the home

*Assets and debt you both brought to the relationship in the beginning, especially in a de facto separation. 

These can be a little harder to agree on when not married especially if one had considerably higher debt or net worth than the other.  

Communication between each of you will go back and forth via each lawyer and each letter involved costs on average $500 per email drafted and sent. The quicker you can both come to an agreement the cheaper it will be for everyone leaving more net worth to divide instead of giving it to very expensive negotiation professionals.

The time it takes to come to an agreement will depend on many factors including response and action times of all parties and willingness to come to an agreement. One may drag it out but each should know the time limits to be resolved or further orders will need to be applied for to extend the negotiation. Once a fair amount is agreed on by both, you can then finally apply to the family court for the financial order that will legally bind the agreement.

Once approved by the court and payments have been made, you’ll have freedom that allows you to move forward by processing the old chapter of your life while planning for the next chapter. Time to get back to you! 

Remember to “use facts only”!

- A mantra I used each time I had to respond within the negotiation. 

It’s so important to gather all facts and responsibilities to only focus on these when communicating. Having clear steps and boundaries about the process will keep any childish behaviour out of proceedings without blame and enable a solution for everyone going forward. You’ll also be able to process the emotions because these are real but should be processed separately.  

I have only outlined the basic process following a separation in this article. You can find more information about financial agreements here.

https://financialagreements.com.au

www.familyrelationships.gov.au/separation/money-property 

I hope this article has been helpful. I wanted to share this information because it’s the first point we can become stuck which drags things out unnecessarily causing prolonged pain and stress to everyone, especially when kids are involved. It was the area that caused me the most indecision so I have provided the basic info I needed at the time. Once I knew all of this, I felt empowered enough to take on the painful task of getting it done and I hope it can do the same for others.

If you feel you are in danger because of a DV relationship and have little to no control in moving forward, here are some resources to help you take your first or next step:

Call 1800RESPECT

www.orangedoor.vic.gov.au 

www.withrespect.org.au 

www.redcross.org.au

https://www.australianfamilylawyers.com.au/information-centre/leaving-domestic-violence-relationship