The emotional upheaval and the disruption of the family unit during a divorce creates great pain, uncertainty, and financial instability for everyone involved. However, the manner in which the division of marital assets is handled and distributed, can either help the process move smoothly, or create great angst.
In New South Wales, the parties involved in a divorce are allowed to come to their own agreement as to how the assets from their marriage or de facto partnership are going to be divided. If the parties can come to an agreement on their own the agreement can then be formalised by the court. The parties will then proceed to distribute the assets as agreed to and move on to new beginnings.
However, all too often the circumstances of divorce become cantankerous and the parties cannot come to an agreement as to how their joint assets should be divided. In these instances, the parties can rely on the court to implement the division of assets in accordance with the Family Law Act of 1975.
The implementation of the division of marital assets in accordance with the Family Law Act can be complicated and difficult. There is no set manner in which assets of a marriage are divided. The Court can take into consideration several different variables including:
- The individual properties and values owned by each person prior to the marriage
- The contributions of each spouse during the course of the marriage
- The assessed value of each joint property investment
- The monetary earnings of the parties
- The non-monetary contributions of the parties; including those made by a stay-at-home parent
- Inheritances and gifts received during the marriage are considered
The court will also take into consideration the future needs of the parties based upon age, health, monetary resource, parental contributions and employment viability within the workforce. The court will also take into account other financial resources available to the individual, and the matter of child care.
During the course of negotiating a divorce settlement, the parties and the attorneys involved can go through each of these variables and attempt to craft a settlement agreement that is amenable to both sides. If this is accomplished the court will not need to be involved in the division process and can instead formalise the agreement via a court order. However, if the parties cannot come to a final settlement agreement the Court will intervene and proceed to divide the marital assets to the best of their ability.
Because many couples are busy focusing on the financials of the divorce the issue of the welfare of the children can often get lost in the chaos. However, the court takes the well being of the children as a primary concern. Many parents are able to come to an amicable agreement as to how the children will spend time with each parent. For those who cannot set up their own schedule of child custody, the court will assist them.
The court will begin from a standpoint of equally shared parenting – as that is typically in the best interests of the child. However, in some families this is not possible so the court will begin to consider lesser time with one parent.
Parents have resources available to them to help in creating their children’s schedule. A mandatory resolution session is set up for parents to attend, allowing them to discuss options for scheduling. Very often with the use of a mediator, a schedule can be successfully settled upon. If it cannot, the couple will receive confirmation that they attempted to agree on a child custody arrangement, but failed. The court will then allow for the issue to be litigated.
The best interests of the child are always the standard for family court child centred decisions. The Court will take the following concerns into consideration when determining a final parenting schedule;
- The children have an opportunity for a meaningful relationship with both parents
- Keeping siblings united
- Current and prior parenting abilities
- The views of the children
- Ongoing stability for the children
- The safety of the child
- The overall effect of the changes in schedule on the children
- Evidence that both parents will encourage the children to have contact with the other parent
- Exposure and access to the children’s extended family members
Once the court has reviewed all of these factors, they will make the following decisions;
- The amount of time the children will spend with each parent
- The primary residence of the children (if not equally shared)
- The manner in which the children will be dropped off and picked up by each parent
- The sharing of holidays between parents
- The parental rights and responsibilities of each parent
- The manner of communication that will be allowed between the parent and the children
- The forum that will be used when a parental decision is in dispute
While the immediate division of assets, and the ongoing care and parental rights surrounding children, are the two greatest and most immediate issues in a divorce case, there are other issues that can complicate the situation. Spouses and de facto couples often have superannuation assets, inheritances that have been received or gifts that have been bestowed on the couple. These are also important issues that require the expertise of a professional financial advisor and/or an attorney to be properly distributed.
For every family we wish a lifetime of success and togetherness. But, in the instance that you find yourself facing these major life changing decisions, and need assistance, please don’t hesitate to contact us. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs.
Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.