Frequently Asked Questions in Family Law
By Briana Kotzapavlidis
15 January 2019
Principal Briana Kotzapavlidis has compiled the top 10 questions she gets asked by clients.
1. What practical and self-help steps can you take at any early stage?
Exploring early opportunities for direct discussions with your partner / spouse including via mediation might lead you to an early, swift and cost efficient settlement. Even if a settlement is not reached, direct discussions can be great for “fact finding” – gaining a better understanding and insight into your partner’s goals and objectives, and identifying what is important to each of you for future negotiations, and for narrowing the issues in dispute; “weeding out” what you can and can’t agree upon at an early stage.
2. What paperwork will you need for a property settlement?
To fulfil the obligation for full and frank disclosure, separated parties need to gather together and exchange important financial documents, tax returns, pay slips, bank and superannuation statements and sometimes valuations. By doing this at an early stage, you will be less likely to hold up your property settlement, once an agreement has been reached. Both parties need to “come to the table with clean hands”, so that they can make informed decisions about how they want or are prepared to settle their case.
3. How quickly can we have a property settlement?
There may be strategic reasons why you would want to “sit tight“. However, for most clients it is better to squarely address matters “head on” and avoid the inevitable delay and the often increased personal (and emotional) cost that comes with “not rocking the boat” for too long. You can enter into a property settlement at any time after separation (*beware the 12 month time limit after Divorce).
4. What you are your rights and obligations to financial support?
It is important to understand at an early stage what your rights and obligations may be to proper and adequate child support and/or spousal maintenance. Early advice can ensure that clients are not left in a financially precarious position, without reasonable (or any) financial support or, for the paying party, being at risk of paying “over the odds“ and over what is often a longer than expected period of time whilst a property settlement is being negotiated.
5. Should I communicate directly with my partner?
In most cases, parents will continue to share joint responsibility for making major decisions about their children. This is a positive obligation to consult and reach agreement, whenever possible. Communication is key. However, both parents should understand that direct communications, via text, email and Facebook posts can and often are used as evidence in Court. Early advice about the tone and content of communication (in whatever form) can be especially important in parenting disputes.
6. Where should the children live?
Arrangements for the care of the children must be entirely focussed on the best interests of the children, having regard to their care prior to separation, each parties’ capacity to care for the children and the children’s ages and stages of development. It can be difficult, in the early stages immediately following separation, for parents to identify what will be in the children’s best interests and how each child will respond to and cope with the breakdown of their parents’ relationship and their family’s changed circumstances. These early arrangements can create a status quo for arrangements into the future so should ideally be made with careful thought and consideration and the benefit of early advice. Child focussed mediation (a great forum for open and frank discussion) is usually the best first step.
7. Should I start living with my new partner?
The introduction of a new partner to children should be dealt with in a sensitive and age appropriate manner. Consideration may also be given to the impact upon your former partner, noting that the introduction of a new partner particularly at an early stage can be inflammatory and has the capacity to “derail“ steps toward an agreed settlement. Your new partner’s financial circumstances might be relevant and might potentially have a detrimental impact upon your property or spousal maintenance entitlement.
8. What is the right amount of child support?
Both parents have an obligation to financially support their children to the extent that they are able to do so. There is government formula that is most often used to set the rate of child support, based on both parties’ taxable income, the costs of caring for the children (a legislated amount) and how much time the children spend in the care of their parents. This rate can vary to adjust for changes in one or both parties’ income and the care arrangements. To achieve greater certainty, parties can enter into a child support agreement or child support orders which might deal with the rate of child support and other matters that are important to the parents, such as the payment of school fees, health costs and the costs of extra-curricular activities.
9. How do I protect myself from this happening again?
Separated parties might consider entering into a Financial Agreement, before starting to live with or marrying a new partner. Parties who are economically independent and have children may like to put in place some insurance (by way of a Financial Agreement) that limits the chances of them having to go through another difficult and costly dispute about money. A Financial Agreement can be entered into before, during or after a marriage or defacto relationship.
10. Getting things in order.
If you have recently separated, you should consider reviewing and updating your Will and any Powers of Attorney and any binding death nomination that you have made in relation to your super fund, to make sure that they reflect your current wishes given your changed family circumstances. It is worthwhile checking lines of credit, offset accounts and credit cards to make sure that neither party can make any significant changes to the family’s finances before discussions about a property settlement (or spousal maintenance) begin. Many separated couples chose to confirm with their bank that major financial decisions (such, as loan drawn downs) need both parties written approval.
Amidst the emotional upheaval that comes with any separation, it is difficult to wrap your head around what needs to happen next. Our Family Law team are well equipped to advise and assist you to take the sensible and practical steps that will support you and achieving an early resolution of your matter.
We invite you to contact us if there are any issues you would like to discuss.