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How to Ensure Your Divorce Runs as Smoothly as Possible

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Divorce Process

Getting a divorce is often considered one of the most difficult times in a person’s life – but there are a few things you can do to try and make the load much lighter. The following tips aim to simplify the process as much as possible, while also attempting to alleviate the emotional burden that this time can have on all parties involved.

Consult a lawyer

The first thing you should do when getting a divorce is seek the counsel of a qualified lawyer. Even if you are on great terms with your ex-partner, the simple act of having an experienced professional guide you through the process can ensure you are better equipped to face what is down the road. Remember, getting a divorce is often considered the ‘easy’ part when it comes to the legalities – the real issues can start to surface when you begin the settlement process, and having someone who can help you navigate these things can make a profound difference.

Consider alternative methods of dispute resolution

Don’t be fooled by all the movies where an aggrieved husband or wife boldly tells their ex-spouse ‘I’ll see you in court’ – litigation is something you want to avoid as much as possible. Not only does it stretch the process out over a long period and cost all parties an extremely large amount of money, but it is likely to put you and your family under more emotional strain. Alternative dispute resolution processes such as mediation, arbitration and negotiation can achieve desirable outcomes by facilitating open communication between all parties. If possible, you should aim to explore these avenues before opting for litigation as they are less time consuming, quicker and less costly.

Try to communicate openly

There’s no doubt that during a divorce process, emotions are often running high. It’s common for all parties to feel sadness, anger, anxiety and confusion and these things can influence one or both parties to act in ways that may not necessarily be in their best interests. Going into your divorce, it’s good to make a conscious effort to communicate openly and honestly about all matters. This is especially important if you are undertaking any of the alternative dispute resolution options mentioned above, as these rely on a good foundation of communication to achieve a positive result that both parties are happy with.

Keep the focus on the kids

Divorce isn’t only difficult for the two married parties – for any kids involved, it can be a tumultuous and confusing time as well. If you and your partner have children, it’s important to ensure that they feel as secure as possible throughout this process. Talking with your partner about how to approach this area is best, as it will allow you to agree on a plan that will hopefully minimise the effect it may have on your little ones.

If you are facing issues related to family law, don’t hesitate to contact our Melbourne office on 03 9993 7184 or our Sydney office on 02 9186 8135.

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The Importance of Seeking Legal Advice

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Legal Advice

When you’re dealing with family law matters such as divorce, separation, spousal support, division of assets or child custody issues, it’s always a good idea to get the help of a qualified professional. There are several reasons why finding a good family lawyer should be a top priority for you during this time, including…

It makes things less complex…

Family law matters can be overwhelming for the parties involved as there is so much to consider from both a legal and a personal point of view. Seeking the legal advice of an experienced family lawyer can help to alleviate this pressure, as it will ensure that you are fully informed and prepared for the process ahead. A good lawyer will clearly explain the best path for you to pursue based on your specific circumstances, allowing you to understand what your next steps should be.

It ensures that you know your rights…

It goes without saying that you want the best possible outcome for you and your family when it comes to matters such as separation, divorce and child custody. However, approaching these matters without seeking appropriate legal advice puts you at risk of making uninformed decisions that can negatively impact the outcome. Your lawyer will make sure that you are familiar with your individual rights, as well as giving you advice on how best to proceed. This helps you to avoid situations or outcomes that unfairly infringe on your rights.

It ensures your agreement is legally binding…

When dealing with important matters such as property settlement, child custody and division of assets, it’s crucial to ensure that any agreements made between both parties are legally binding. A family law professional will help to assure this by drafting documents that protect the sanctity of the agreement and will be upheld if one party does not satisfy their side of the agreement.

It gives you a better chance at a positive outcome…

Ultimately, your lawyer is there to help you achieve the most desirable outcome for you and your family, and that is precisely why seeking their advice is the best choice you can make. Here at Australian Family Lawyers, our team of professionals are highly experienced and passionate about what they do, always aiming to guide our clients through the legal process as smoothly as possible.

If you are facing issues related to family law, don’t hesitate to contact our Melbourne office on 03 9993 7184 or our Sydney office on 02 9186 8135.

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How to Navigate the Complexities of Child Support

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Child Support

More often than not, child support brings with it a multitude of questions from both parents who are unsure of how the process will unfold. If you are paying child support, or if you are the primary care giver receiving the payments, take a look at the questions below to learn a bit more about what to expect…

How is the payment amount determined?

There are three ways in which the amount of child support owed can be determined.

  1. The Child Support Agency (CSA) can conduct a Child Support Assessment, which considers factors such as the income of both parents, the amount of time each parent spends with the child, the ages of the children and the number of dependent children from other relationships. The assessed amount of child support is (usually) payable by the parent who spends less time caring for the child. The assessed amount is expressed as a weekly, fortnightly or monthly payment. The CSA can also collect child support payments directly from the paying parent and forward them onto the parent with primary care of the child.
  2. A self-managed approach to child support payments is also possible for parents who can reach an agreement without the help of the CSA. In situations such as this, the funds can be transferred privately via cash or bank transfer. Alternatively, if the parents are happy to self-manage the payment but are unsure of what should be reasonably paid, they can request that the CSA conduct a child support assessment, but can still also pay directly to the other parent.
  3. Parents can also agree to pay additional expenses for the children, such as school fees, medical expenses and extra-curricular expenses. The parents can have an informal agreement between themselves about such expenses, or alternatively enter into a more formal arrangement by way of a Child Support Agreement.

What can I do if the parent is not paying their child support?

If the parent of your child is failing to pay the required amount of child support, you can report them to the CSA. From here, they will be investigated and any missing payments will attempt to be recovered and provided to you. This can be done in several ways, such as intercepting tax refunds, employer reductions, prosecution or bank account deductions.

Does child support still have to be paid if one party lives overseas?

Child support payments are still required even when the payer or the payee are living overseas, although this can cause a delay in payments. The best option is for the parent who is still residing in Australia to contact the CSA with the details of their situation, as they may be able to liaise with the relevant bodies to facilitate payment.  Depending on the country where the other parent lives, this can make it more difficult to enforce payment if Australia does not have any reciprocating child support arrangements with that country. Of course, self-managed payments are also an option for parents who can come to an agreement without the help of the CSA.

If you have any other questions regarding child support, please don’t hesitate to contact Australia Family Lawyers for professional advice tailored to your situation. Call our Melbourne office on 03 9993 7184 or Sydney on 02 9186 8135.

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Negotiation, Mediation and Litigation: What’s the Difference and How Will It Affect Me?

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Mediation

 

When you’re navigating a dispute resolution process, there are several different avenues that are designed to facilitate a fair and just outcome for both parties involved. The most common of these are negotiation, mediation and litigation, and each one involves its own unique process and ability to resolve matters of family law.

What is negotiation?

Negotiation is arguably the most common form of dispute resolution, and chances are that you have taken part in this process on a smaller scale many times throughout your life. This method requires the aggrieved party to approach the offending party to discuss the concerns surrounding the dispute and to attempt to come to an agreement both are happy with.  Negotiations can be done in person, however in most family law matters negotiations are usually done by way of letters between the parties and/or solicitors.

Negotiation, if possible and practical, should be the first step in any dispute. It can avoid costly litigation fees and avoid a long-drawn out legal process. However, if the negotiation process is not successful, the next step would be to move on to mediation or litigation.

What is mediation?

In situations where negotiation between the two parties (and/or their lawyers) has not lead to a resolution, the matter can be taken to an impartial third party. This person is known as a mediator and should be accredited and familiar with disputes that are similar in scope to the one being brought forward. When mediation is sought out, both parties must agree that they will try to resolve their differences with the help of the mediator.

A mediator does not make a decision, but rather assists the parties to reach their own agreement.

Mediation is a great option for those people who have not been able to reach an agreement via negotiation, but are still open to resolving the matter out of court.

What is litigation?

Litigation is an avenue that should be explored if all other alternative dispute resolution methods are exhausted. In this instance, the parties involved rely on a judge to determine the resolution by presenting their case to the court. The outcome of this method is binding on both parties, although taking the matter to a court of appeal may be possible.

As it is a time consuming, costly and prolonged method of dispute resolution, it is recommended that litigation only be used if all other avenues have failed.

Whichever method is used to resolve your family law matter, we strongly recommend that any agreement be legally formalised.  We can assist you during all forms of dispute resolution and drafting legally binding documents to formalise your agreement.

For more information about your options when it comes to family law dispute resolution or property settlement, call our Melbourne office on 03 9993 7184 or Sydney on 02 9186 8135.

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What You Need to Know About Division of Assets Owned by a Third Party

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When you are going through the process of dividing your assets during a divorce, it can be easy to assume that the only people who will be involved are you and your ex-partner. However, in situations where assets owed to, or owned by, a third party are tied up in the individuals involved in the divorce process, aforementioned third parties can become involved in the proceedings also. The following information explains how this can occur and what the result may be for the people involved.

You may be wondering how your divorce/separation can involve other individuals or entities…

Despite the fact that divorce and separation is often a very personal legal process, the truth is that it can have a wider effect on certain parties involved with the married individuals. The Family Law Act gives the court power to make orders which are not only binding on third parties, but can affect their rights and interests also.

The people who may be considered relevant third parties can range from…

  • Friends and relatives who may hold investments or personal loans with the individuals seeking a property settlement.
  • Companies or partnerships with whom the separating parties have shareholding interests.
  • Executors of deceased estates.
  • Banks and other financial institutions.
  • Trusts, trustees and appointors of trusts.
  • Business partners of one or both of the divorcing parties.
  • Creditors and Bankruptcy Trustees.

While the concept of involving other people, especially family and friends, in your divorce can seem daunting, it’s important to remember that the court only makes orders in a just and equitable manner. The order must be reasonably necessary and appropriate so as to preserve the rights of the third parties who may become involved.

 

So what are the situations in which third party assets become involved?

There are many situations in which a court may make an order that affects a third party. For example, in the situation where the divorcing parties gave a personal loan to friends or family, the court may order that all monetary reimbursement of that loan is to be given to one individual, rather than as a shared asset. This is also true if money is owed to a third party; the court may find that one individual should incur the financial responsibility of paying it back. Similarly, in situations where companies are involved, the court has the power to order the transfer of debt or shares into one individual’s name.

In every situation, the court takes the appropriate measures to ensure that the order is appropriate and fair on all individuals or groups involved by looking at the relevant facts presented by the relevant parties.  It is important not only for the separating individuals to get advice from a specialist family lawyer, but also for the third party to get such advice as to their rights and entitlements.

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Child Support Options

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Child Support

Most parents find child support a source confusion.   Commonly they ask us if they have to go through the department to human services, child support (CSA) or not? The first point is that parents are expected to support their children to the best of their ability. Here is an overview of some child support options for you to consider:

(1) Private arrangement

Here parents agree how the child’s care costs will be paid or shared in the future.

Some couples in their property settlement might agree to put money aside for certain expenses such as private school fees or they might set up a formal trust for example for the children’s education. Other couples might agree as to which parent will be responsible for paying certain expenses. An example might health insurance premiums and medical costs, extra curricular activities or the costs such as school uniforms, excursions etc.

(2) Child Support as Assessed

If parents cannot agree then a parent might apply for child support through the Child Support Agency who may issue a child support assessment. A parent who has applied for Centrelink or means tested benefits must have a child support assessment issued.

Child support as assessed takes into account each parent’s income and the number of nights that the child is in each parent’s care which is then included in the assessment formula used by CSA. Child support is generally insufficient for extracurricular activities,  dental and medical treatments eg orthodontic treatment or private tuition/schools fees and the like. If the other parent will not pay more than child support as assessed then a change of assessment application can be made through the Child support agency.

To bring that application, the applicant needs to satisfy one or more of the 10 grounds for that change of assessment some of which include costs in spending time with  a child; if the child support assessment is unfair because of the income, earning capacity, property or financial resources of the parent or the type of education or training that the parents agreed their child would receive such as private schooling.

If the application is successful then the child support agency can increase the  assessable child support.   That mean the parent receiving child support will receive more child support on account of the higher care costs. If the decision is disputed then it can be reviewed  by the CSA Registrar. That decision can appealed to the Administrative Appeals Tribunal and/or an application made to the Federal  Circuit Court of Australia for child support orders but within the specified time limit.

Sometimes a child support order might be appropriate especially if a paying parent resides overseas and in a country which does not have reciprocal child support arrangements in place.

Child support agreements

To give greater certainty and where child support as assessed will not be sufficient eg the child attends a private school or has higher health care costs, then a child support agreement might provide more certainty.

There are two types – Binding or Limited.

A binding child support agreement enables any amount to be paid. It can include lump sum child support in the form of property to be credited fully against any child support liability. Each parent must get independent legal advice before the agreement is signed. Each solicitor must sign that certificate of advice and it should be registered with CSA. A binding child support agreement is serious transaction and need careful drafting and consideration as to what events in the future might arise and should terminate it. It can only terminate by a new binding child support agreement which expressly terminates the former or court order. As the threshold findings to support such an order are high, they should not be rushed into.

They cannot be varied – to vary it the parties must enter into a new binding child support agreement to specifically terminate it and set out the newly agreed terms. They do offer clear advantages too – such as greater certainty in terms of obligations to pay and receive certain payments, can provide for any amount of child support and they do not require a child support assessment to be issued.  They work well for many families.

A limited child support agreement offer more flexibility (but less certainty as a result). The parties do  not require legal advice before entering into it. There must be a child support assessment issued  for the registrar to accept it for registration.

It can end if both parties agree to end it in writing, after 3 years or more and a party request CSA end it and if the paying parent is paying 15% of more than the notional assessment and asks CSA to end it.

If you need child support advice, please email us [email protected] or call 03 9993 7184 (Melbourne) or 02 9186 8135 (Sydney).

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Your Guide on Appealing a Court’s Decision

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When it comes to matters of family law, it can often be hard to accept a decision that a judge has made as it often affects areas of our lives that matter most to us. However, it is possible to have the case reconsidered in some circumstances where there is legitimate reason to believe that the judge made an error. This is called an appeal, but before you decide to go down this avenue, there are a few things you should be aware of.

What is the process of filing for an appeal?

As mentioned previously, you cannot appeal a decision simply because you are unhappy with it; you must prove that there are valid grounds on which to assume that there was an error in law or fact. Because of this, you must follow a strict procedure to ensure that all the necessary needs are met within a specific timeframe.

The process is as follows…

Within 28 days of an order being made from a judge, a Notice of Appeal can be filed in the Regional Appeal Registry. When doing so, the appellant must pay a filing fee.

An appellant must also submit a draft index to the appeal books within 28 days of filing the Notice of Appeal. If this requirement is not met within the prescribed timeframe, the appeal is considered to be abandoned.

Once the draft index is filed, the appeal is then taken to a procedural hearing. During this hearing, the appellant will receive orders in regards to what documents and other information is required for the Full Court hearing.

appealing court decision

Appeal hearings are taken before the Full Court, which in family law is three judges from the Family Court.

What you should know before pursuing an appeal

Like any legal process, appeals can be lengthy, expensive and very emotionally taxing on all parties involved. Before you file for appeal, it is important that you speak to an experienced family lawyer about your options and get their advice as to whether you should proceed in this direction.

An important thing to remember during this process is that appealing a court’s decision does not stop that order taking effect. This means that all parties involved must obey the order handed down from the court until it is overturned by the Full Court, if it is at all.  Your may therefore wish to apply for a “stay” of the original decision until the appeal has been heard.  Your lawyer can assist you with this process also.

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What You Need to Know Before Filing for Divorce

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It goes without saying that the breakdown of a marriage is difficult for everyone involved, especially when you’re working through the emotional and legal repercussions at the same time. While divorce proceedings are rarely a walk in the park, there are a few important things for you to know before you go ahead with such a big decision.

It’s a process

In Australia, the dissolution of marriage is done in multiple separate steps; the granting of a divorce order, property arrangements and, if there are kids involved, parenting arrangements (although not necessarily in that order). Contrary to what many people expect, the granting of a divorce is usually the most straightforward step, while the other arrangements are lengthier and more tedious due to the nature of what is being discussed and agreed upon. Some simple research from reputable sources either online or in person will help you better prepare for what is to come.

divorce order

Going to court shouldn’t be the goal

We hear it in movies all the time – “I’ll see you in court!” – but when it comes to divorce proceedings, it’s best to try and avoid this situation altogether. What the movies don’t tell you is that walking into the courtroom to fight with your ex-husband or wife is not only emotionally taxing, but time consuming and expensive. That’s why it’s always best to explore other avenues for resolution, such as mediation or arbitration, leaving a court case as a last resort if you can’t seem to come to a fair agreement. This will allow you to discuss your wants and needs with your ex-partner in person, with the hopes of it remaining civil and both of you can leave happy with what is agreed upon.

You will want the advice of professionals

Divorce can be tricky, especially if you’re not on the friendliest of terms with your ex-partner. Luckily, there are a range of professionals who you can go to for valuable advice about how to move through the process in a way that will hopefully provide you with a fair outcome. Finding a good family lawyer whom you feel comfortable speaking openly with is crucial to achieving a positive outcome that you are happy with. You might need to talk to a few different lawyers before you find the person you want representing you, but it will be worth it in the long run. Consulting a financial advisor or accountant, in conjunction with your lawyer, is also a great way to determine what you should be asking for in the settlement. And finally, a therapist or counsellor for you or your kids should be a priority, as it will ensure that you get the emotional support you need during such a difficult time.

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What Is a Prenuptial Agreement and Do I Need One?

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Whether you are married or in a de-facto relationship with your partner, putting the appropriate framework in place to easily and fairly divide your assets in the event that you separate is very important. A Financial Agreement (“prenuptial agreement”) helps to do this by representing both of your wishes in a way that is recognised by the court, with the aim being to make the process easier if the need to redistribute your common assets ever arises.

Also known simply as a “prenup”, a common misconception about these contracts is that they are only for couples who are about to get married. While this is certainly one situation in which a prenuptial agreement is signed, the truth is that any two individuals in a relationship can enter into one of these contracts before, during or after the relationship.

financial agreement

So how do you know if a Financial Agreement is right for you and your relationship?

Contrary to what many people think, these agreements aren’t only beneficial to couples in a high income bracket, or for people who earn significantly more than their partner. A “prenup” is a great option for any situation where one or both people involved are bringing significant assets into the relationship, or to protect anticipated future assets, such as a future inheritance. This can include property, businesses in your name and any money that might be in a savings account. It’s also a good way to determine how you will split any common assets you may already have – such as a house or a car – if you happen to end the relationship. As many of us know, deciding who gets what after a break up or a divorce can get very messy very quickly, so it’s wise to agree upon a civil resolution while you are in the midst of love.

However, for some people, it’s not about the assets at all; it’s about the debts. Throughout the prenuptial process, you and your partner can contractually agree on how you will go about paying off important financial obligations such as outstanding loans, university fees or credit card debt. Along with this, you can also get into detail about how this will influence the amount each person contributes to other costs like household fees and bills etc.

While nobody enjoys thinking about the potential for their relationship to not last the distance, a Financial Agreement provides a foundation of open communication and transparency on which two people can build their lives. Not only does it ensure that you both have your respective assets accounted for, but it can help you to avoid a lot of post break up stress if you ever have to go your separate ways.

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One Family Law Myth Exposed

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Do we start at 50/50?

After the breakdown of a de facto relationship or marriage, parties are usually uncomfortable about their financial and property entitlements.

There is a myth that there is a presumption that assets should be divided equally. There is, however, no automatic entitlement in property and financial matters. Each parties’ entitlement depends on their circumstances and the entitlement should be determined and estimated by an experienced family lawyer.

There is no presumption of a percentage entitlement in relation to a property or financial settlement.

The things that are taken into account when determining a property/financial settlement.

In Australia, the Family Court determines how property and financial matters are to, the Family Court determines how property and financial matters are to be settled by reference to the Family Law Act. Family lawyers will tell you what is to be taken into consideration by the Court. Again, there is no formula to be applied as the settlements are based on all of the facts provided and the discretion given to the Court by the Act in deciding each case.

The Court will, however, take into account the following factors:-

  1. Whether it is just and equitable to make an order in the first place.
  2. The value of all assets and liabilities are identified so as to establish the net assets, including assets held individually, in partnership, by companies and by trusts.
  3. The contributions made by each party to the acquisition, maintenance and improvement of the assets, including financial contributions, assets owned at the commencement of the relationship, windfalls such as gifts from parents, inheritances, redundancy packages, etc.
  4. Non-financial contributions made by each party such as where one party looks after domestic matters or children to the detriment of their career.
  5. Indirect financial contributions such as giving up a career to allow the other party to further their own career.
  6. The future needs of the parties such as whether they have responsibility for the care of children, their income earning capacity, their qualifications, age, financial resources, health and superannuation.

Conclusion

Remember that there is no presumption of a 50/50 split as a starting point and that each matter is decided upon the particular circumstances of each case.

The Family Court can make Orders that are just and equitable in relation to division of property.

Separating parties should obtain independent legal advice about their entitlements at the earliest opportunity.

Should you seek assistance with property settlement entitlements following the breakdown of your marriage or relationship, email us [email protected] or call 03 9088 3184 (Melbourne) or 02 9188 2031 (Sydney).

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What is a Prenup?

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Marriages and defacto relationships often fail leaving parties in a quandary as to how to settle their financial affairs. In the event that you are organised and have a Pre-Nuptial/Financial Agreement, then your property and finances will, in all likelihood, be divided in accordance with your wishes in the event that your relationship breaks down.

Pre-Nuptial/Financial Agreements can be made at the start of a relationship, during the course of a relationship or after the relationship has broken down.

Pre-Nuptial/Financial Agreements are regulated by the law and include a provision that each party must be represented by an independent legal advisor who must give those parties certain advice and certify that they have done so. In the event that these technical requirements are not adhered to, then it is quite possible that a Court will overturn the Agreement and it may be of no effect.

Pre-Nuptial/Financial Agreements apply not only to marriages but in relation to defacto relationships as well. You are living in a defacto relationship when you and your partner are living together on a genuine domestic basis but you are not married to each other. A large number of matters are looked at to define defacto relationships, including the length of time that you have been in the relationship, whether finances are intermingled, whether you live together under the one roof and whether you have children together. There are other matters that are considered as well.

In the event that your relationship breaks down and you do not have a Pre-Nuptial/Financial Agreement, then it is essential that you obtain immediate legal advice on your rights and obligations. We can assist you negotiating a settlement, however, it is always wise to give early consideration to entering into a Pre-Nuptial/Financial Agreement so that the future contains some certainty.

Should you have a query, contact one of our lawyers on (03) 9088 3184.