While it would be nice to have an exact time frame for how long it takes to settle the distribution of property during the course of a divorce, it is nearly impossible to do so. The division of all of the assets of the marriage is a process that requires full disclosure of all of the marital property. Subsequently, the actual division of the property requires careful consideration as to the amount and manner in which it will be distributed to the spouses/partners.
First, it is important to know that settling ownership of marital property does not just mean physical property. It means all of the property of the marriage including, but not limited to;
- Bank accounts
- Retirement funds
- Personal property
- Business assets
There are two ways in which a couple can proceed with the division of their assets. These two ways are by coming to an agreement and drafting and signing a Binding Financial Agreement or seeking the assistance of the court by means of participating in court-ordered dispute resolution and negotiations and possibly a trial and consent orders.
Binding Financial Agreements
After a couple has determined the value of their assets and their outstanding debt, they then can start to decide how to divide both the assets and the debt they share. The most expedient way to do this is via open communication and a willingness to cooperate with one another. If a couple can proceed in this manner then they have the option of drafting a Binding Financial Agreement (BFA) which they will both sign and abide by. This avenue is quicker and less costly than using a solicitor but, even in using a BFA, it is highly recommended that both parties obtain legal advice. If both parties agree to the BFA, the property can then be distributed accordingly and there is no need for a Court order confirming the same. However, if there is a dispute in the future the parties can bring the BFA to the Court for assistance.
Under these circumstances, the Court can review the agreement for the following and possibly alter it or set it aside.
- Change of circumstances, either financially or in relation to the children
- Fraud or undue influence in the agreement
- Uncertain and/or confusing terms
- Incomplete terms
- Undue influence in bringing the agreement about
- Misrepresentation of assets
- Unconscionable conduct during the course of creating the agreement
If a couple cannot come to an agreement about distributing their property, they can seek assistance from the Court. If a couple chooses to go this route, then they will need to provide their solicitors and the Court with a full accounting of their property both real and personal. This takes longer as it often requires the couple to participate in court-mandated dispute resolution, negotiations, and possibly a trial. At the end of the process, the Court will issue Consent Orders. The consent order will direct how the personal property is to be distributed. A consent order is binding on the parties and enforceable by the Court. It is important to remember that when going the route of a trial and a consent order, the parties no longer have the flexibility that is provided to them when they enter into private negotiations or a binding financial agreement. Therefore, couples who want more flexibility and creativity in deciding how to divide their marital property, should so as much as possible to work together to reach a viable compromise.
One of the reasons that it is so important to produce all financial information for the process of a BFA or a Consent Order is that all property distribution is time limited. Once a divorce is finalized a couple only has an additional twelve (12) months to seek and secure additional property from the marriage. Therefore, it is always best to resolve the issues associated with property distribution before a divorce is finalized.
While no couple wants to go through the details of their property holdings and the pain associated with the division and distribution of the same, it is a necessary part of dissolving a marriage. However, with open dialog and cooperation, the process can move more smoothly and allow the couple to reduce the costs of litigation.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. 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 780 770.