About to Separate - Practical Steps to Prepare for Separation

21/05/2018

Having had decades of experience advising in family law the Senior Lawyers at Watson & Watson have seen the adverse effects of taking action or not taking action.  Consideration must be given as to the immediate effect and the long term effect of whatever action you take.  Like most things proper consideration and careful planning will assist and lessen the distress and trauma in this very difficult period in one’s life.

Various circumstances arise in relation to separation including an unexpected separation. Upon separation it is important that you protect yourself, you protect your children, you protect your spouse or partner, you protect your assets and protect the family assets against actions which will reduce the pool of assets that will be available for division between the parties once the parties have separated.

For you to be able to obtain some advice as to the likely outcome you will need to have a brief history of past events leading up to the current situation.  The current situation will revolve around:

1.        Your safety and the family’s safety.

2.        Financial position of each of you and your spouse or partner and your ability to look after yourself financially and your wellbeing and the children.

3.        The support that you may have in this difficult time.

Often in a relationship one partner or spouse is more aware of the financial position of the partnership than the other.

It is important that you are aware of your financial position generally for example, your assets and liabilities including your real estate mortgages, credit cards and other liabilities.  Protection of the assets is not always easy.

We have been involved in cases where upon separation one party or other has financially destroyed the matrimonial asset pool, often it is driven emotionally and very often it is regretted later, often after spending tens of thousands and possibly hundreds of thousands of dollars fighting with your partner.

The debates are sometimes fuelled with the assistance of lawyers at great financial and personal expense.

Do not expect that any particular person for example a lawyer will assist you in stopping the anger and destruction.  However once proper preparation has occurred, you and your partner with the assistance of competent lawyers can assist in a resolution without destruction.

The above comments are to assist in proper consideration of how to prepare for separation and how to resolve issues following separation.

Accordingly prior or shortly after separation it would be helpful to you if you are aware of:

1.        Your financial and families financial position.  This would include for example knowing what assets are owned by you, your spouse or companies or trusts.

2.        What your banking arrangements are including mortgages, home loans and credit cards.

3.        How you or your partner can incur liabilities without your knowledge or even with your knowledge to your detriment.

We can assist you before or after separation in dealing with these aspects so that steps can be taken for example so that neither party can withdraw money from the bank or on a mortgage with a redraw facility without the others consent.  Similarly one party cannot take a significant sum from the joint bank account.

You need to consider how you will fund your expenses during the initial period of separation and thereafter where will you live, how will you earn money, do you have savings?

Thinking about these problems prior to separation is recommended, prudent and wise.

We can and have in many cases advised in this regard.

We recommend that careful consideration be given to:

1.        You having a separate bank account into which you can deposit your own money for example, wages.

2.        You taking steps so that the family’s main bank accounts can only be operated with the consent of each of the parties.

3.        Where the home is in one parties name take steps to protect the assets.

4.        You considering the credit cards that are available and take steps so that they cannot be used for unnecessary expenses.

5.        Taking steps to protect a business owned by you or your partner without taking action to destroy the business for example, by restricting access for the proper conduct of the business.

6.        Whether action taken in the short term will make things more difficult to resolve in the future.  If the main asset is a house worth for example $4,000,000.00 we recommend that before you take steps to “evict” the other party by hook or by crook you consider the effect of that on the deteriorating relationship and the consequential effect on the prospects of the early resolution.

7.        Failing to take steps that would assist in the resolution of the dispute for example, if your only significant assets is a house again worth $4,000,000.00 we recommend that agreement be reached to take an ordered view as to the sale of the property and division of the funds to enable each party to proceed, accommodate themselves and cover their needs whilst resolving the matter.

8.        Take steps to reduce discretionary spending hopefully by all parties.

9.        Do not rely on promises made that everything will be all right.

10.      Give consideration to preserving or changing your long term financial planning which may include a Power of Attorney, your Will or nominating two beneficiaries in your superannuation.

11.      Seek to reach agreement in a relatively short period of time so that the little items do not cause undue escalated issues.

12.      Think about the outcome you want and what is fair for each of you, your partner and your children.

13.      Spend your money on lawyers wisely to achieve an outcome.

14.      If you and your spouse are able to, with assistance, put financial and other matters in a holding pattern with assurances (not promises) pending resolution.

Usually, at a very early stage it is possible for advice to be given as to a range of settlements, which range can be determined quite accurately.

It is disturbing as to how many matters only settle shortly before Hearing when there has been ample opportunity to settle the matter on better terms for each party prior to that stage.

It would be better if the matter is resolved early on a fair basis, before each party has expended tens of thousands of dollars on legal fees.

There are many other alternatives most of which are not utilised often or at all for example, once there is an early prognosis and analysis of the financial position of the parties and the parties cannot settle with or despite lawyers we recommend that the parties agree (through their lawyers) that a Position Paper be provided to an experienced Counsel practicing in the area who can provide a written advice as to the ambit of the settlement.  This can be provided on a ‘without binding’ basis.  This usually resolves the matter. We usually find this method is unacceptable by one of the parties or one of their lawyers who initially resist such a suggestion.  We do not know why?

If you are in a situation where you are about to separate or you have separated and you have not been able to move the matter forward to a resolution please telephone Richard Watson or his Personal Assistant Shereen DaGloria to discuss your rights, entitlements and pit falls when it comes to financial property settlements so that you can be assisted by one of our expert family lawyers in achieving the best possible outcome based on your circumstances.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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