You may have received information about property settlements from television shows, back yard BBQ’s, people you know, and good old Google searches. There’s a problem with this, though. Only your divorce lawyer (also called a family lawyer) can properly advise and guide you through the settlement process.
When you don’t have a family lawyer, what you find, hear or read
might not apply to you, like these five (debunked) myths below.
Myth #1: We can only start dividing property once we divorce
Not true. You can begin settlement proceedings when you separate. Calling your family/divorce lawyer is an important first step to take if you know there’s no chance of reconciliation.
Getting the right information early assists in minimising conflict, obtaining faster resolution and reducing legal costs.
Your divorce lawyer at Hooper Family Lawyers will answer any questions you have during an initial consultation, which can take up to two hours. Bring any documents you believe are important and make a list of you and your partner’s assets, superannuation and liabilities.
Myth #2: Everything is a 50/50 split
Just because you’re married or in a de facto relationship doesn’t mean assets are split 50/50 on separation.
The law requires that the contributions and future economic circumstances of the parties are examined. The amount of time the parties are together and number and age of children is often examined in assessing how much one side will receive.
The contributions of the parties are not just financial, but also non-financial and as homemaker and parent. Financial contributions do not rank more highly than others. That saying ‘money isn’t everything’ certainly applies here.
Myth #3: The only way to end this is going to court
Your divorce lawyer, divorce lawyer or family lawyer assists you to avoid going to court. Most will regard it as the last option. Instead of going to court, most divorce cases can get settled through mediation.
Even if court proceedings begin, the process is very much geared towards settlement. There’ll be directions for a conciliation conference or mediation ordered early on. Statistically, of the matters that begin in court only about 2% to 5% go all the way through to a final hearing.
Myth #4: The breadwinner will get more
The Court looks at the contributions that are direct and indirect, financial and nonfinancial. They also regard the acquisition, conservation and improvement of the properties for settlement; and as parent and homemaker, when it comes to adjusting property and superannuation. Even if one parent was a homemaker and didn’t work, they still contributed significantly to raising the children and maintaining the home. This is regarded the same as the breadwinner’s contribution.
When deciding how to divide property, the Court looks at the following:
- The net value of the property, assets and superannuation
- Contributions both parties have made over the years
- The future needs of each side
Myth #5: My partner cheated, so the odds are in my favour
The Family Law Act 1975 introduced the concept of “no fault” divorce. Therefore the majority of judges aren’t concerned with any alleged misconduct from one side. Not even when the misconduct could be regarded as “immoral” or similar.
This changes if the misconduct has an economic impact. Where there has been a negligent, reckless or wanton destruction of property, the conduct of whoever’s responsible is considered. Gambling or even the effect of domestic violence on property are examples of this.
In child custody cases, behaviour/conduct is closely examined. The conduct, though, must be relevant to best interests of the child, especially when protecting them from unnecessary risks. Will the settlement affect a parent’s ability to keep their kids safe from emotional, physical or sexual harm?
The above are some of the “myths” commonly encountered, but there’s plenty more out there. You best way forward is to trust a family law expert, your divorce lawyer. We set you on the correct path from the moment you walk into your consultation.