Family Law Practical Tips
Separation is not easy. In fact, separation is difficult whether it is your decision to separate or not.
There are many things to consider when contemplating separation or when you have separated such as your health (including your safety and wellbeing together with any children), care arrangements for children, your financial stability both in the short term and long term and also interactions with your former partner or spouse.
Here are some practical tips for separating couples to keep in mind which may assist in reducing the stress of separation:
Information about separation is essential.
Obtain legal advice from an experienced Family Lawyer early on.
The more information you have about separation and the process, the better decisions you can make. Being informed about separation is very important.
Where possible, consider obtaining legal advice prior to separation to obtain essential information about what might happen if separation occurs.
Just because you obtain legal advice from a lawyer does not mean that you are actively engaging a lawyer to represent you and act on your behalf.
Having a lawyer in the “background” can be a great support to you. They can provide you with advice and you then use that advice in your discussions with your former partner/spouse or in your interactions with them.
Legal advice from an experienced Family Lawyer will assist greatly in enabling you to be informed and to some extent reduce the stress of the unknown.
Often legal advice is obtained from a lawyer at the time of separation. That lawyer will then walk you through considerations you should make. Weeks or months later your lawyer then actively helps facilitate discussions between you and your spouse/partner where discussions between you both have haltered. Your lawyer can assist you to formalise care arrangements, property settlements and the required legal documents for agreements you have reached with your partner/spouse.
Where possible, encourage your former partner/spouse to obtain legal advice as well. This will ensure when you have discussions together you are both aware of the relevant matters to be considered and you each feel able to contribute to an informed discussion and each express a view.
2. Where possible, stay amicable or at least civil and business like with your former partner/spouse.
Where parties are able to talk with each other (even through mediation services) then it is likely to be a much better outcome for the parties and for their children.
As outlined above, your lawyer can be in the “background” and assist you in planning the discussions you have with your former partner/spouse and provide you with the legal advice you need to have those discussions.
Keeping it amicable, as best you can, will ensure that your separation is as smooth as it can be, often reduces the stress of separation and indeed saves on legal costs as being amicable will likely reduce any dispute you have with your spouse/partner. It will also, importantly, if you have children together, ensure your children see that you are amicable which will reduce the impact of separation on them.
Being able to speak with your former partner/spouse amicably will mean that you can discuss matters of importance both at separation and into the future including discussions such as care arrangements for children, division of assets and child support.
3. Engage with services that will assist you and your children after separation.
There are many services available in the community to assist separating parties such as mediation services, courses for parents to undertake to assist with “parenting and communication after separation” and also services to assist with the stress of separation such as counselling. There are also services to assist with family violence and support.
Your experienced Family Lawyer will be able to provide you with details of services in your local area which may be appropriate. Your GP is also generally a good referral point as well.
Having support from family and close friends can also be invaluable. Having external or impartial services available to you is also very important.
Separation is difficult and tapping into services and available family supports is essential.
4. What is the benefit of a disagreement?
At the time of separation and after separation it is likely there will be disagreements between you and your former partner/spouse. Consider whether the disagreement can be resolved easily.
Is the disagreement about a big or little issue? Avoid, as much as possible, arguing about the “little things”. Focus on the big picture and where you can, try to compromise on the little things. This may involve you having an understanding of your former partner/spouse’s view and considering how the issue can be resolved with compromises from both you and them.
Avoid “it’s the principle of it” arguments. That position will protract disagreements and entrench positions. That type of position will rarely resolve a dispute and may limit the ability for you and your former partner/spouse from moving forward after separation.
5. Obtain financial advice from an experienced financial advisor.
Separation significantly changes your financial position in the short term and also the long term.
Obtaining financial advice early on after separation can assist in the decisions you make regarding what to keep in a property settlement, retirement plans and options as well as employment options and/or paths.
It can be a process to understand your new financial position after separation.
If you have a business, then it is important that you also seek advice from your accountant as well.
6. Obtain a new Will and Powers of Attorney.
Once you separate, you should obtain advice from an experienced Wills and Estates Lawyer about obtaining a new Will and updating your Powers of Attorney.
At separation, you should consider who should benefit from your estate if you die and who you would like to take care of your affairs (medical and financial) if you are incapacitated and unable to do so.
If you are married, your spouse will be your Next of Kin and be able to make decisions for you if you were incapacitated (if you have no new Powers of Attorney) and benefit from your estate if a new Will has not been made. When you divorce, you no longer have a spouse and as such your spouse is not your Next of Kin.
7. Review insurance policies.
After separation, take time to review your insurance policies such as house, car, life and health insurance policies.
Do you need to change these policies such as the amounts insured, who is able to access the policies and/or who benefits from the policies. Do you need any new insurance policies?
Insurances are important and should be reviewed at separation and also after you have completed a property settlement.
8. Review your superannuation accounts.
It is important to review your superannuation account(s). Your superannuation entitlements may change after separation (eg increase, decrease or potentially stay the same) depending on your property settlement particulars.
You should consider who will benefit from your superannuation if you die or become incapacitated. Have you set binding or non-binding beneficiaries on your superannuation account? If you have, consider if they should be changed or remain as is.
Each superannuation fund has different policies about binding and non-binding beneficiaries on superannuation accounts. It is important that you review your superannuant fund requirements and also obtain financial advice about potential beneficiaries of your superannuation account(s) including any insurances attached to those account(s).
9. Note the date of separation .
If you are married and you wish to apply for a Divorce Order, you must have been separated for at least 12 months when you apply for your Divorce Order. Sometimes this date is easy as it is the date one party left the home and/or both parties agree to a date of separation. Other times this date is not so clear or the date is disputed.
Until such time as you divorce, your partner is your spouse and therefore your Next of Kin. If you wish to change this then a Divorce Order is required.
Once divorced, you have one year to make a claim for property settlement.
If you are in a domestic partnership or de facto relationship then you have two years from the date of separation to make a claim for property settlement.
Whether de facto or married, the date of separation should be noted.
10. Be mindful about your legal costs.
As outlined it is essential you obtain advice from an experienced Family Lawyer. That does not mean that you pay an exorbitant amount in legal costs.
It is your lawyer’s aim to resolve your family law matters as efficiently and expediently as possible. This sometimes is not possible for various reasons however, by you limiting the disputes, being amicable where you can with your former partner/spouse and providing timely and sensible instructions to your lawyer, then you should be able to limit your legal costs because the disputes will be limited.
Where disputes are limited, your family law matter will be resolved much more quickly and therefore largely reducing legal costs.
When liaising with your lawyer, be focused on resolution and in moving forward with your life after separation. If you have an experienced Family Lawyer, then that will be their focus too.
At Harwood Andrews we have an experienced Family Law Team. Contact us today to book an appointment to discuss your family law needs.
Bridgette Kelly
Principal Lawyer
M 0438 714 965 | T 03 5225 5275
E bkelly@ha.legal
Tara Paatsch
Principal Lawyer
M 0412 660 842 | T 03 5225 5254
E tpaatsch@ha.legal
Natasha Vassallo
Lawyer
T 03 5225 5237
E nvassallo@ha.legal
