What is the difference between child support and spousal maintenance?

What is the difference between child support and spousal maintenance?

Question:

This may seem like a silly question but what is the difference between child support and spousal maintenance? Don't they cover relatively the same things?

Answer:

This isn't a silly question at all. In fact, it's a fairly common question we get in family law. Many people seem to confuse child support and spousal maintenance with one another but they ARE different. 

What is child support?

As the name suggest child support is support for a child or children of the relationship. It is not financial support for your former partner or spouse.

Who determines how much child support is given and by who?

How much is given and by who is normally determined by a child support agency. However, if you and your former partner can reach an agreement between yourselves you can enter into a limited child support agreement or a binding child support agreement. Each of these agreements have very different rules but in both of these private agreement you and your former partner can agree to a range of different things. For example:

  • You can agree to periodic support (such as weekly or monthly payments) or a lump sum;
  • You can agree to the payment of school fees;
  • You can agree to the payment of medical costs;
  • You can agree to the payment of extracurricular activities as well as other expenses for the child/ children.

If you don't want a private agreement or you can't reach an agreement on child support, you can leave it up to the agency and the agency will undertake an assessment.

What does the child support agency look at in their child support assessment?

The child support agency's assessment is based off a few things but the main areas of interest are:

  • Who has primary care of the children;
  • How much time does the other parent spend with the children; and
  • The income of each parent;

What happens in cases where a partner hasn't been involved in the child's life?

The fact that you're not involved in a child's life doesn't mean that you're not liable for child support. For example, if a child is born and the father says "I want nothing to do with the child" that doesn't preclude the mother from making an application to the child support agency for financial support for that child.

Is there any way to NOT pay child support?

The only way you cannot pay child support is if you enter into a private agreement where both you and your former partner agree that child support shouldn't be paid and that is stated in the private agreement. Unless you have that, the child support agency can still make an assessment and make one party liable to pay child support.

How long does child support last?

Child support is usually in place until the child is 18 or until a number of other things happen depending on what you have agreed upon in your private agreement.

What is spousal maintenance?

Spousal maintenance, on the other hand, is financial support paid by one person to their former spouse or de facto partner. 

Do you have to have children to be eligible for spousal maintenance?

No. To be eligible for spousal maintenance you just need to pass the following two step test:

  1. 1
    Demonstrate to the court that you have a NEED for spousal maintenance. 

Now, arguably it's relatively easy to say, "Well, I don't have an income because I have care of a child and my expenses are X amount each week, so I clearly have a need for X dollars". Which is why there is step two of the test:

  1. 2
    Prove that your former partner has the CAPACITY to meet that need.

Which is probably the hardest part as the payer (your former partner) must reasonable be able to pay the spousal maintenance. If they cannot afford to meet your needs then spousal maintenance will not be awarded.

So if you meet those requirements you will be eligible for spousal maintenance whether you have a child or not. However, having full time care of a child can usually be the reason as to why you have a need for spousal maintenance.

Who determines how much spousal maintenance is paid and by who?

You and your former partner can determine how much spousal maintenance is paid and by who between the two of you. All you need to do is reach an agreement and formalise it. 

If you and your former can't reach an agreement about spousal maintenance the court will determine how much is paid and by who. 

In these circumstances, the party seeking spousal maintenance will have to make an application to the court for spousal maintenance. Once the application is made the court will look at the pre-separation standard of living to determine whether the needs you are claiming are reasonable. The court will also assess whether or not the payer is reasonably able to pay the spousal maintenance. After doing so, they will make orders regarding the amount of maintenance to be paid, when it is to be paid and to whom.

Is there any way to NOT pay spousal maintenance?

As mentioned earlier if the applicant does not meet the requirements of the two step test you will not have to pay spousal maintenance. Unlike child support, spousal maintenance isn't an automatic entitlement. 

Also, if you and your former partner agree that no spousal maintenance should be paid and this is state in a private binding financial agreement, then you won't be liable to pay spousal maintenance.

How long does spousal maintenance last?

Spousal maintenance usually has an end date. It may be paid for a specific period of time (e.g. one year). It may be paid until the property settlement is finalised or until that spouse retains themselves. It could even be until the children reach school age and they can return to a full time job. But usually there is an end date, however it is not unheard of that spousal maintenance is awarded on an indefinite basis.

The key differences:

  • Child support is for the child / children's needs. Spousal maintenance is for a spouse/ de facto partner's needs.
  • Child support is determined by a child support agency. Spousal maintenance is determined by the court. However, both can be determined privately by both parties who agree on an arrangement.
  • How much child support is paid and by who is based more so on how much money the child is going to need and whether one of the parties can pay for it. Spousal maintenance, on the other hand is more so based on the history of the relationship and what is going to be required in terms of a financial exchange to keep both parties moving forward.
  • Child support is usually automatically awarded unless you are both in agreement it should not be paid (and this is finalised). Spousal maintenance is not automatic as you are required to meet eligibility criteria before it is granted.
  • In most cases both child support and spousal maintenance have end dates. However, child support usually lasts until the child is 18. Spousal maintenance usually only lasts until the receiver is capable to gain adequate employment or support their needs themselves. 

If you have any questions regarding spousal maintenance or child support feel free to call us on 1300 767 384. Alternatively, book in for a free phone appointment below for your own free, step-by-step plan. It's created by a qualified lawyer and it's fully tailored to your situation. 

Want a free tailored, step-by-step plan to help you with your separation?

Created by a qualified lawyer with no obligations.

How long does a property settlement take?

How long does a Property settlement take?

Question:

I've heard a few horror stories about people getting a divorce and the property settlement drag on forever and ever. So I just want to know how long does a property settlement actually take? 

Answer:

Normally, when a client asks a lawyer this question they are met with the answer "it depends". We hate this response because it does not give you proper direction. 

The truth is, how long a property settlement takes is really up to you and your former partner. A property settlement can be as quick as you want it to be or it can be as drawn out as you want it to be. 

If everyone is amicable and the asset split is agreed on, a property settlement can be resolved within a week of two (not including the time it takes for the Court to approve any agreement). 

The difficult part in any property settlement is not the actual settlement, but agreeing on the assets available to split. Figuring out what assets and liabilities are included in the 'property pool' (which is basically all of the assets and all of the liabilities) and what each asset is worth is what we see take the most time. 

For example, if one party owns a business and you both can't agree on what it's worth, then it has to be independently valued - which can be a lengthy process.

Some assets may also need to be sold first before things can be divided. 

Situations like this can drag things out, because once that part of the process is resolved you can negotiate an agreement as quickly as you want.

What if you can't agree on a deal?

If you can't agree on a deal then you will have to go to court. 

It's no secret that going to Court can take time. So, once you are in the court system, it's generally not the quickest of processes. 

After having your initial court date, you can sometimes wait up to 18 months to two years for a final trial date.

Unfortunately, that time frame is not unusual. 

In saying that, despite the delays associated with the Courts, Court is still a very useful tool to resolve matters, even before they get to a final trial. 

All the time we see people disagree on what assets are included in the property pool and what each asset is worth. When this process begins to become drawn out that's when court can become useful. The Court will make orders to resolve those disputes at an early stage.

If someone is refusing to value something or is refusing to disclose their assets to you then you can use the court to speed up this process. You can issue subpoenas once you are in the Court system so you can find assets that have not been disclosed. The court can make orders for the valuation of certain assets. So, the court can be a very useful tool, and more often than not, it can speed the process up in situations such as these.

How To Determine Your Share Of The Property Pool.

Free, step-by-step guide to figure out what percentage of the assets you deserve... it's not always 50/50.

How To Determine Your Share Of The Property Pool.

Free, step-by-step guide to figure out what percentage of the assets you deserve... it's not always 50/50.

How can you speed up the property settlement process?

The best way to speed up a property settlement is for both you and your partner to commit to full disclosure. It is in everyone's best interest to get everything on the table as fast as possible. Unfortunately, people don't always see it that way, but if you can disclose and be open and upfront from the get-go, a lot of matters would be resolved a lot quicker.

If you can get the disclosure and the valuation of assets out of the way as quickly as possible things won't drag out.  

Unfortunately, when people don't agree, won't agree or just don't treat the process with urgency, they can have to start all over again. 

As disclosure is an ongoing process if you allow 12 months to go by with reaching an agreement you may need to do the disclosure and valuation stages all over again. You will likely be in a new financial year so you will have to exchange your bank statements, your tax returns and all of your financials all over again. 

Like we said above, Court can be a useful tool, so do not be afraid to use it. If your former partner isn't willing to disclose or work with you to finalise your property settlement in a timely fashion court can speed the process up.  

Finally, if your assets are simple and do not require valuations, this can obviously be resolved very quickly if all parties agree. Often people come to us in these situations; they may have already sold the matrimonial home, which was their only real asset. There's money in trust from the sale of the property but there's really nothing else to disclose or value. In these situations we can resolve these matters really quickly, even as quickly as a week or two (excluding the time the Court takes to approve any agreement).

If you have any questions regarding your property settlement feel free to call us on 1300 767 384. Alternatively, book in for a free phone appointment below for a free, step-by-step plan to speeding up your property settlement. It's created by a qualified lawyer and it's fully tailored to your situation. 

Want a free tailored, step-by-step plan to speed up your property settlement?

Created by a qualified lawyer with no obligations.

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Am I entitled to spousal maintenance if I was in a de facto relationship?

Am I entitled to Spousal Maintenance if i was in a de facto relationship?

Question:

Recently, my partner and I of 9 years separated. We ended things on good terms but I'm struggling financially without them. As they were the main income earner and I only work part time I'm finding it hard to pay for my rent and other basic costs of living now that they are gone. Working full time isn't an option for me either as I still need to take care of our two young children.

I know that you are entitled to spousal maintenance if you were married but my partner and I never got married. Does that mean I'm not entitled to spousal maintenance as a de facto?

Answer:

No, it does not mean you do not have an entitlement. As a de facto you have the same entitlement to spousal maintenance as a married couple does.

The main difference is that if you weren't married you have to satisfy the requirements of being in a de facto relationship. You can check if you satisfy the requirements of being a de facto by taking the following quiz:

De Facto Quiz

Download and answer our simple de facto questionnaire to discover whether or not you were in a de facto relationship.

De Facto Quiz

Download and answer our simple de facto questionnaire to discover whether or not you were in a de facto relationship.

The only other difference is the time limit that applies. As a de facto couple you have two (2) years from the date of separation to make an application for spousal maintenance. If you are married and are not yet divorced, there is no time limit, however once you are divorced you only have one (1) year from the date your divorce was granted.

However, the sheer fact you were in a de facto relationship does not automatically entitle you to spousal maintenance. 

Spousal Maintenance requirements:

  1. 1
    As we outlined above, the first step in determining whether you are entitled, is first satisfying whether or not you were in a de facto relationship (unless you are married).
  2. 2
    The next step is to assess whether the applicant, that is the person applying for spousal maintenance, has a NEED for maintenance. Just like in the example above, the de facto wife cannot work full-time because she has primary care of two children. Another scenario we see often is where one spouse has been out of the work force for a significant period (for example 20 years) and they do not have the experience or qualifications to gain employment straight away. You need to be able to satisfy that you are unable to earn an income, not that you simply chose not to earn one.
  3. 3
    The final step is that the respondent (the person who would be liable to pay the maintenance) must be able to afford to pay spousal maintenance. Your former partner has an obligation to support you, but only to the extent they're able to do so. For example, if your former partner is also merely scrapping by then you would not be entitled to spousal maintenance as they cannot afford to pay it. On the other hand, if after the payment of your former partner's reasonable expenses, there is money remaining each week, then it is likely you could successfully establish a spousal maintenance claim.

How is spousal maintenance paid?

Spousal maintenance is a payment from one spouse to another. It can be paid weekly, monthly or in a lump sum. It doesn't have to be periodic payment. 

Who determines how much and when to pay?

Ultimately, the court determines how much spousal maintenance is paid and when it is paid. It is based on the applicant's need and the respondent's capacity.

The court makes this decision by getting both you and your former partner to disclose your income, your weekly expenses as well as all your financial resources and assets. This information is disclosed to the court as well as you and your former partner.

Upon receiving this information the court will compare the difference (see where there is shortfall and surplus) and make a decision based on this assessment.

If you have any questions regarding spousal maintenance feel free to call us on 1300 767 384. Alternatively, book in for a free phone appointment below for your own free, step-by-step plan. It's created by a qualified lawyer and it's fully tailored to your situation. 

Want a free tailored, step-by-step plan to help you with your separation?

Created by a qualified lawyer with no obligations.

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How long does a divorce take?

How long does a divorce take?

Question:

My wife and I have been thinking about getting a divorce for a while. Before we do, we want to know how long it takes to get a divorce? so we know what to expect.

Answer:

Before we get into exactly how long a divorce takes, it's important to clarify that a divorce and a property settlement are two very different things. 

People often refer to a property settlement as a divorce. That's not what we are touching on in this article. A divorce is simply legally ending the marriage. So, we are discussing how long it takes to legally terminate the marriage, NOT how long it takes to divide your assets.

If you wish to find out how long a property settlement takes we have answered that question in another article - How long does a property settlement take?

A divorce usually takes anywhere from 15 months and 2 days to 18 months and 3 days. But be aware, that is not the entire application process, we explain below.

Why does it take so long to get a divorce?

The main reason is that you must be separated for 12 months before you can even make an application for a divorce. 

You have to be separated for 12 months because the court wants to be certain that there is no chance or reconciliation between you and your former spouse. That there is no chance you will get back together.

After 12 months has passed, the application process is fairly straightforward. You could complete it within a day or two. You then need to either have your former spouse co-sign it, or serve them with the application.

For a step-by-step guide on how to apply for a divorce, download our guide "How To Get A Divorce" below:

How To Get A Divorce.

Free, step-by-step guide to submitting an application for divorce. 

How To Get A Divorce.

Free, step-by-step guide to submitting an application for divorce. 

Once you have filed your application for divorce, you will then be given a hearing date. The hearing date depends on how busy the Courts are. You might be given a hearing date within the next month, or you may have to wait for 4 or 5 months.

Once you have had your hearing and the divorce is granted, you will still have to wait 1 month and 1 day after the date the divorce order was made before the divorce takes effect. 

The breakdown

The breakdown:

  • Need to be separated for 12 months before you are eligible to apply for a divorce.
  • 1-2 days to complete the application process. 
  • Wait anywhere from 2 - 5 months for a hearing date.
  • Once granted, wait 1 month and 1 day before the divorce takes effect.

Best case scenario:

12 months  + 1 day + 2 months + 1 month + 1 day

= 15 months and 2 days

Overall the process itself is very quick. It only takes one/ two days to actually complete the application. There could be some delay in serving your spouse if they are not willing to co-sign the application. Unfortunately, unavoidable time limits* and the delays of the court is what draws things out.

* some time limits can be reduced or avoided in some extreme circumstances.

If you have any questions regarding the divorce process or your property settlement feel free to call us on 1300 767 384. Alternatively, book in for a free phone appointment below for your own free, step-by-step plan. It's created by a qualified lawyer and it's fully tailored to your situation. 

Want a free tailored, step-by-step plan to help you with your divorce?

Created by a qualified lawyer with no obligations.

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Is money given to me from my parents included in the property pool?

Is money given to me from my parents included in the property pool?

Is money given to me from my parents included in the property pool?

Question:

What happens if I received money from my parents during the relationship? Is it included in the property pool? My parents gave me $100,000 to help me and my husband buy our first home. Now that we are getting a divorce, I'm concerned that my former husband will get the house and my parents and I will lose the $100,000 I put into the house.

Is there a way I can recover this money and give it back to my parents?

Answer:

This is a question we get fairly frequently. Many people will receive money from their parents at some point in their relationship. This money could be given as a gift or it could be a personal loan to help finance something you may not have the money for at that point in time. The important thing here is that distinction between whether the money was a gift or if it was a loan. 

If the money was given as a gift it will be included in the property pool as a financial contribution made on your behalf. If the money was a genuine loan it will not be included in the property pool and the money will need to be repaid.

Where issues arise is when people claim the money was a loan but there is no loan agreement in place and there has been no evidence of repayments. 

So, how can you keep this money away from your former partner and out of the property pool?

7 steps to ensuring money given to you as a loan isn't included in the property pool:

1.   Identify who is involved.

1.   Identify who/what is involved.

The first step in any legal issue (including this one) is to identify the parties involved. 

In this scenario, you usually have 4 key people:

  1. 1
    You;
  2. 2
    Your former partner;
  3. 3
    Your mother;
  4. 4
    Your father;

Bearing in mind that one or both of your parents may have passed away. For example, the money given may have been an inheritance. 

2.   Determine the facts.

2.   Determine the facts.

The next step is to determine what the facts are. You need to know the specifics of your situation so you can identify any obstacles that may arise later. 

Common facts you will need to note are:

  • How much money was given?
  • When it was given?
  • Was there a loan agreement in place?
  • Has there been any evidence of repayments since the money was received?
  • Was it in fact a gift? Is there an email that could be found where mum and dad say "we want to gift you this money to buy a new house"?

3.   Confirm the objective.

3.   Confirm the objective.

Step three is simply to confirm what you are trying to achieve. Presumably this will be to keep the money away from you former partner. So you will want to know how you do that and how you keep it out of the property pool.

4.   Identify the obstacles.

4.   Identify the obstacles.

Next you need to use the information from steps 1 and 2 to help you identify the obstacles that will prevent you from reaching your objective in step 3. 

The main obstacles in this scenario surround whether or not there is a loan agreement in place and if repayments have been made.

4a.   No loan agreement

If no loan agreement is in place this will be an obstacle in proving the money was actually a loan. In these circumstances where there is no loan agreement in place you can still mount an argument that it was a loan if you have made repayments to your parents ever since the money was given 

Example: Courtney & Harry

Courtney and Harry were in a de facto relationship for 5 years before they decided to separate. As they were de facto they needed to do a property settlement just the same as if they had been married. 

Courtney and Harry earned relatively the same amount of money but kept their finances separate. Harry knew that Courtney's family was "well off" and that Courtney received money/ assets from her parents regularly but didn't know any specifics.

As Courtney had never told (disclosed) Harry about these assets, Harry didn't even realise that these assets were being sold. 

You also may not be aware of how far along the sale process is. For example, your partner may have listed a property for sale weeks ago without you knowing. By the time you discover that the property is for sale it could be too late. The deal could be done and there could be a contract in place.

4b.   Loan agreement but no repayments

4b.   Loan agreement but no

         repayments

Timing also presents an issue. Even if you know the asset is being sold, assets like cars can sell within a few days. A house obviously takes some time but there are many assets that can be sold quite quickly. This presents a risk as you don't have enough time to act.

5.  Select the obstacle that needs to be dealt with first.

5.   Select the obstacle that needs to be dealt

      with first.

5.   Select the obstacle that needs to be dealt with first.

Instead of trying to overcome all of the obstacles at once, it's important that you just focus on resolving one at a time.

Let's say you're in a situation where your former partner is trying to sell a property. You are obviously aware of the sale so timing is the issue not non-disclosure. As mentioned before timing isn't as urgent on a house but still an important obstacle to overcome straight away.

On the other hand, if you aren't even aware of your former partner's finances and suspect they are hiding assets then non-disclosure is the obstacle you would tackle first. That's because you need to know what assets your partner is trying to get rid of first, before you can even take action to stop/ take control of the sale.

If you believe your former partner may be hiding assets from you read How do I find out what my former partner owns?. It goes over some of the most common places to check for hidden assets.

6.   Develop a to-do list.

6.   Develop a to-do list.

So what happens next?

You are now aware that your former partner is trying to sell one or multiple assets. You know that the biggest obstacle in gaining control of the sale is timing. Now it's time to develop a to-do list and execute the actions. 

Example 1: Your former partner is trying to sell your house.

If you are in a situation where your former partner is attempting to sell your family home or an investment property without you, there are 4 things you will need to do to stop/gain control over the sale:

  1. 1
    Decide whether you want the house sold or not.
  2. 2
    Depending on what you want to happen, write to your former partner stating you are aware that they are trying to sell the property and that they need to either involve you in the sale or stop the sale immediately.
  3. 3
    Next, urgently write to the real estate agent advising them of your interest in the property and request that any proceeds are held in a trust account.
  4. 4
    Finally, once you know who the conveyancing solicitors are, send that same letter to them asking that all the proceeds are held in trust.
Example 2: Your former partner is trying to wind up their company.

If you found out, your former partner was trying to wind up a company or trying to transfer all the assets out of the company into another company the biggest obstacle will probably be the disclosure of everything.

If you're not a director of the company or if you have no actual involvement in the company, you might not be entitled to certain documents and information. The accountant might not be willing to talk to you. 

So in a company situation where you aren't getting cooperation from your former partner the first step, ordinarily is to make an urgent application to the Court. This is to seek injunctions for the transfer or sale of assets or the winding up of a company.

7.   Evaluate.

7.   Evaluate.

Finally, you need to evaluate how your actions have gone. Have your actions achieved the desired outcome?

You may give your former partner seven days to respond/ take action. If you don't receive a response in seven days, that's when you might consider further Court action.

TAKE AWAY: The most important thing to do when your former partner is trying to dispose of assets is to firstly identify the assets and then get a plan of action to‚Äč take control of the sale.

Want a free tailored, step-by-step plan to take control of a sale?

Created by a qualified lawyer with no obligations.

If you have any questions regarding the sale or transfer of assets feel free to call us on 1300 767 384. Alternatively, book in for a free phone appointment above for your own free, step-by-step plan to gain control of at risk assets. It's created by a qualified lawyer and it's fully tailored to your situation. 

What do I do if my partner has or is trying to dispose of one of our assets?

What do I do if my partner has/ is trying to dispose of one of our assets?

What do I Do if my partner has/ is trying to Sell/ Transfer Assets out of their name?

Question:

My wife and I separated six months ago. As I am a director of a company, the majority of our assets were put in my wife's sole name for asset protection reasons. Now that we are separating, my wife is trying to sell the family home and other assets to reduce the size of the property pool. 

I know that I am entitled to my share of those assets but don't know how I stop her since the assets are solely in her name. What do I do?

Answer:

Situations like these unfortunately come up all the time. Not all couples will have all their assets held in joint names. This can done for a range of reasons such as tax reduction or asset protection.

Most people are not usually too concerned about having the asset in their spouse's sole name because they realise that even if the relationship does break down, the asset is included in the overall property pool anyway. However, for an asset to be included in the property pool, it generally needs to be owned by either you or your former spouse unless some argument could be raised as to a beneficial or equitable entitlement.

What we often see, is for one party to attempt to cheat their former partner out of a fair split by transferring or selling assets to a friend or family member to reduce the value of the property pool. Once the property settlement is finalized these assets usually return to the individual, giving them a far greater share of the 'true' property pool.

So, how can you prevent your former partner from selling or transferring assets that are solely in their name?

How to stop your partner from selling/ transferring assets that you have an interest in:

A-to-B step-by-step plan

1.   Identify who/ what is involved.

1.   Identify who/what is involved.

When you are trying to stop the sale or transfer of an assets the first thing you need to do is identify the key people and things involved. 

  • What is the asset your former partner is trying to get rid of?

Is it a house? A company? A car? By figuring out the exact asset/s your former partner is trying to get rid of you will be able to identify the other relevant parties involved.

  • Who is involved in the selling/ transferring the asset?

If your former partner is selling your family home or an investment property then you need to know who the real estate agent is. You also need to know who the conveyancing solicitors are.

2.   Determine the facts.

2.   Determine the facts.

Once you know the asset/s your former partner is trying to dispose of, you need to note down the facts of the situation:

  • Who owns the asset?
  • Who controls the asset?
  • Where is the asset held?
  • Do you have access to the asset?
  • Is there an accountant you can go through?

3.   Confirm the objective.

3.   Confirm the objective.

Step three is simply to confirm what you are trying to achieve.

  • Are you trying to stop the sale of the asset? or
  • Are you just trying to have some control over the sale?

You might not actually have an issue with the asset being sold but you want to be in control of its sale.

4.   Identify the obstacles.

4.   Identify the obstacles.

Now that you have your objective of gaining control of the sale (whether that be controlling the actual sale of the asset or controlling the sale to stop it from happening) it's important that you identify the obstacles that could stop you from gaining control.

The main obstacles we often seen in these situations are non-disclosure and time pressure.

4a.   Non-disclosure

You may not be aware that the asset for sale even exists. 

Example: Courtney & Harry

Courtney and Harry were in a de facto relationship for 5 years before they decided to separate. Being a de facto couple, they are entitled to a property settlement just the same as if they were married. 

Courtney and Harry earned relatively the same amount of money but kept their finances separate. Harry knew that Courtney's family was "well off" and that Courtney received money/ assets from her parents regularly but didn't know any specifics.

As Courtney had never told (disclosed) Harry about these assets, Harry didn't even realise that these assets were being sold. 

You also may not be aware of how far along the sale process is. For example, your partner may have listed a property for sale weeks ago without you knowing. By the time you discover that the property is for sale it could be too late. The deal could be done and there could be a contract in place.

4b.   Time pressure

Timing also presents an issue. Even if you know the asset is being sold, assets like cars can sell within a few days. A house obviously takes some time but there are many assets that can be sold quite quickly. This presents a risk as you may not have enough time to prevent its sale.

5.  Select the obstacle that needs to be dealt with first.

5.   Select the obstacle that needs to be 

      dealt with first.

5.   Select the obstacle that needs to be dealt with first.

Instead of trying to overcome all of the obstacles at once, it's important that you just focus on resolving one at a time.

Let's say you're in a situation where your former partner is trying to sell a property. You are obviously aware of the sale so timing is the issue not non-disclosure. As mentioned before, timing isn't as urgent on an asset such as real property, but still an important obstacle to overcome straight away.

On the other hand, if you aren't even aware of your former partner's finances and suspect they are hiding assets then non-disclosure is the obstacle you would tackle first. That's because you need to know what assets your partner is trying to get rid of first, before you can even take action to stop/ take control of the sale.

If you believe your former partner may be hiding assets from you read How do I find out what my former partner owns?. It goes over some of the most common places to check for hidden assets.

6.   Develop a to-do list.

6.   Develop a to-do list.

So what happens next?

You are now aware that your former partner is trying to sell one or multiple assets. You know that the biggest obstacle in gaining control of the sale is timing. Now it's time to develop a to-do list and execute the actions. 

Example 1: Your former partner is trying to sell your house.

If you are in a situation where your former partner is attempting to sell your family home or an investment property without you, there are 5 things you will need to do to stop/gain control over the sale:

  1. 1
    Decide whether you want the house sold or not.
  2. 2
    Depending on what you want to happen, write to your former partner stating you are aware that they are trying to sell the property and that they need to either involve you in the sale or stop the sale immediately (depending on your objective).
  3. 3
    Next, urgently write to the real estate agent advising them of your interest in the property and request that any proceeds are held in a trust account.
  4. 4
    Finally, once you know who the conveyancing solicitors are, send that same letter to them asking that all the proceeds are held in trust.
  5. 5
    If necessary, you may need to commence Court action.
Example 2: Your former partner is trying to wind up their company.

If you found out your former partner was trying to wind up a company or trying to transfer all the assets out of the company into another company, the biggest obstacle will likely be the disclosure of everything.

If you're not a director of the company or if you have no actual involvement in the day-to-day running of the company, you may not be entitled to certain documents and information. The accountant may not be willing to talk to you or provide you with any relevant documents. 

So in this situation where there is no cooperation from your former partner, the first step, may be to make an urgent application to the Court to seek injunctions prohibiting the transfer or sale of assets or the winding up of a company.

7.   Evaluate.

7.   Evaluate.

Finally, you need to evaluate how your actions have gone. Have your actions achieved the desired outcome?

You may give your former partner seven days to respond/ take action. If you don't receive a response in seven days, that's when you might consider further Court action.

TAKE AWAY: The most important thing to do when your former partner is trying to dispose of assets is to firstly identify the assets and then get a plan of action to take control of the sale.

free tailored step-by-step plan
Want a free tailored, step-by-step plan to take control of a sale/transfer?

Created by a qualified lawyer with no obligations.

If you have any questions regarding the sale or transfer of assets feel free to call us on 1300 767 384. Alternatively, book in for a free phone appointment above for your own free, step-by-step plan to gain control of at risk assets. It's created by a qualified lawyer and it's fully tailored to your situation. 

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How Do I Find Out What My Former Partner Owns?

How do I find out what my former partner owns?

How Do I Find Out What My former partner owns?

Question:

How do I find out what assets my partner owns? More importantly, how do I find any hidden assets? 

My partner and I are separating. They said they had been thinking about it for a while and I'm worried that they have hidden assets to stop me from getting a fair property settlement. What should I do?

Answer:

According to research from ING Direct 18 % of coupled Australians keep a secret account from their partner. Although most people are pretty honest, proceeding with caution is definitely a smart idea when going through a divorce or separation.

Working in family law we have seen many cases where many people will turn to some form of deception to stop paying you what you deserve. Even when things seem amicable. 

Some people may even propose that you split things 50/50, but also take steps to reduce the property pool and cheat their way out of a fair split.... without you ever knowing.

However, with a little bit of digging you can find out exactly what assets your former partner owns. It's simply a matter of going through the following seven steps.

1.   Identify all the parties involved.

1.   Identify all the parties involved.

When you are trying to find out what your former partner owns it's important to know where to start. To know where (and with whom) your former partner can hide things. So it makes sense that step one is to identify all the relevant parties involved in your situation.

When identifying who is involved, think about the following parties:

  • Your former partner;

Your former partner is a major party when it comes to figuring out where and how assets have been hidden. One way in which your former partner can hide things and reduce the property pool is by converting cash into an expensive asset which they then under value.

Example: Jackie & Will

Jackie & Will were married for 5 years before they decided to separate. Will didn't believe Jackie deserved a penny of 'his assets' and looked at ways to hide some of his money. 

One way he hid his assets was by purchasing antique furniture and expensive art for his new place. Will then under-reported the value of these assets as he knew that Jackie was unaware of his finances and didn't know a lot about the value of the art/ antiques. 

  • Your former partner's company;

Another way your former partner may hide assets is by purposely holding off on signing long-term business contracts.

As an owner of a company, it is included as an asset in the property pool. It's usually quite hard to hide a company but what your former partner can do is reduce the company's value by holding off on signing long-term business contracts that would increase the company's worth. By purposely delaying until after the property settlement your former partner avoids sharing that extra revenue with you.

  • Your former partner's employer;

If your former partner is an employee they may also hide assets by asking their employer to delay on paying them their bonus or raise; at least, until the property settlement is finalised.

Also, if they are involved in any type of work that pays in cash then they may also be able to hide this without you knowing. This is because it probably isn't reported on their tax returns or financial statements.

Example: Jackie & Will

Will worked as an electrician earning roughly $140,000 per annum. Will had just had his performance review right before he and Jackie separated. He was to get a $15,000 raise. Knowing that this would be taken into consideration Will asked his boss to hold off on paying his raise until he had finalised his property settlement.

Along with this Will did handy man jobs on the side for which he was paid in cash. Will never reported this income. Jackie knew that Will got paid cash from time to time but had no idea how much he had earned this way.

  • Your former partner's new girlfriend/ boyfriend;

In cases where your former partner has re-partnered, there is a chance that they have tried to reduce the property pool (and what you are entitled to) by disposing of or hiding assets with their new partner.

Example: Jackie & Will

A month after separating Will re-partnered. Will knew that Jackie was unaware of his finances and decided to take advantage of this. He did so by offloading some of his assets as 'gifts' to his new girlfriend. These gifts ranged from physical items such as jewellery to paying expenses such as rent or travel.

  • Your former partner's family/ friends;

Your former partner can also work with their family and friends to hide assets. Similar to a new partner they can make fake payments to family/friends for services or products. 

The same can be done with a debt repayment. This is where your former partner 'repays' a made up debt to their friends/ family. 

The money in both these scenarios is usually given back to your former partner after the property settlement is finalised.

  • Your children;

If you have children, your former partner may try and hide money by setting up a custodial account in the name of a child.

  • Your accountant;

It is common that as a couple you and your former partner used one accountant to manage your finances. This makes your accountant one of the most critical people involved in your separation. They will know what assets you each own and the assets you own jointly. 

Unlike other parties, they are unlikely to hide assets for your former partner but they are essential as they will have most of the information and documents you need. 

  • Your former partner's bank;

Similar to the accountant, your former partner's bank will not hide assets for your former partner. But, they will have relevant information that will help you figure out if your former partner is hiding assets from you. It will also give you a paper trail as to where these assets might be hidden. More importantly it will give you a truthful answer about how much they have in the bank.

2.   Determine the facts.

2.   Determine the facts.

Now you have a list of everyone who is or could be involved the next step is to determine the facts of your situation. This is so you can figure out what you are looking for.

So you will need to note down:

2a.   What disclosure you already have access to?

2a.  What disclosure you already have access            to?

This means noting down everything your former partner has told you they have. What assets and debts are in their name? What is the value of these assets and debts? Does this information add up?

It is in your best interest to carefully review all personal and business transactions. To make sure any income or payments make sense. To make sure that they aren't making fake payments, disposing of assets or lying to you about their income/investments.

2b.   Whether any of those assets were joint or not?

2b.  Whether any of those assets were joint or          not?

It is likely that you and your former partner have joint assets. This is good in terms of having some control over the asset, so your former partner can't just go and transfer the asset to someone else without your approval. 

However, joint assets/debts can also be risky as you are both as liable for the asset/debt. For example, if your former partner makes a redraw on your mortgage you are both liable for that debt. 

Joint bank accounts can also present a risk if the account doesn't require both signatures. Essentially, your former partner can withdraw and hide the money without needing your approval. The same issue can arise with secondary credit card holders. 

On the other hand, assets that aren't in your name can mean that your former partner can do with them as they please unless proper legal actions are taken.

Example: Jackie & Will

Will had an investment property solely in his name. On separation Will began to take steps to sell the property to a family member for an amount lower than the house was worth with the intention of buying the property back after finalising the property settlement with Jackie.  

Jackie would obviously want to stop the sale of this asset, so she would need to immediately notify Will of this and if Will did not stop, she would need to file an urgent application in court. 

On the other hand, if Will was genuinely selling the house for the true market value and Jackie was comfortable with the sale price, but simply wanted to be involved in the sale, she should write to the real estate agent and the conveyancing solicitors advising them of her interest in the property and asking that any proceeds be held in a trust account.

To learn more about the steps you should take to stop the sale of an asset read our article: What do I do if my partner has/ is about to dispose of one of our assets?

2c.   Who ran the finances during the relationship?

2c.  Who ran the finances during the

       relationship?

If you didn't have much to do with the finances during the relationship you are at risk of your former partner hiding assets without your knowledge. This is simply because you may not know what assets you both should and shouldn't have. What assets are missing and what debts shouldn't be there.

3.   Confirm the objective.

3.   Confirm the objective.

Once you have identified who's involved and what the facts are it's important to quickly confirm what you are trying to achieve. 

  • Are you just trying to find one asset in particular?
  • Or are you trying to discover multiple assets?

The end goal is to find this/these asset/s so you can accurately determine what the property pool is. 

4.   Identify & assess the risks.

4.   Identify & assess the risks.

Now it's time to identify and assess the risks.

The main risk in this scenario is non-disclosure. Where you former partner does not tell you about some or all of their assets. 

As mentioned above some of the risks that come all with non-disclosure are:

  • Unreported income that isn't included in the property pool;
  • Disposal of assets through fake payments so that these assets also aren't included in the property pool;
  • Delays in signing long-term business contracts which cause inaccurate business valuations; and
  • Acquisition and under-reported value of expensive assets which also can cause an inaccurate property pool value.

Inaccurate valuations and an inaccurate property pool mean can mean you get an unfair split of the assets. The property pool is meant to include every single asset and debt you both own or have an interest in. If assets aren't included or the value of the assets is wrong you can end up like Jackie.

Example: Jackie & Will

As Jackie didn't know what and where to look for Will's hidden assets she decided to just trust what Will was saying and negotiate a split between themselves. 

After negotiations where finished Jackie and Will settled on a 50/50 split which Jackie thought was fair. 

Soon after the property settlement was finalised Jackie discovered that there was $400,000 in hidden assets that wasn't included in the property pool. Jackie now realised why Will was so willing to do a 50/50 split. It wasn't because they were amicable, it was because Will knew Jackie was realistically only getting 30%. She had been ripped off and it was too late to do anything.

Another risk that people often don't realise are the relationships between parties. For example, your former partner might have the relationship with the accountant. This poses a risk as that accountant may be reluctant to give you documents.

In fact this has happened in matters we have dealt with where the company accountant was the father of the wife, and because of that relationship they didn't want to cooperate with us. 

The important thing here, in this step is that you identify these risks early on.

Woman trying to find hidden assets

One spouse hiding assets from the other is an issue that can arise when doing a property settlement. 

5.  Prioritise what needs to happen to overcome the risks.

5.   Prioritise what needs to happen to

      overcome the risks.

5.   Prioritise what needs to happen to overcome the risks.

Instead of trying to overcome all of the risks at once, it's important that you just focus on resolving one at a time.

Select and prioritise the risk that needs to be dealt with first, rather than juggling too many things at once.

In Jackie's situation the main risk that she may choose to prioritise is non-disclosure.

6.   Execute the actions.

6.   Execute the actions.

Step six is to develop a to-do list and execute whatever actions need to be taken to reach your objective. 

For example, if your former partner wasn't cooperating and disclosing what you need, you would simply file an application in court. By filing that application you can then overcome the risk of non-disclosure as you can issue subpoenas to whoever you need information from.

Definition: Subpoena

A subpoena is a document that compels the production of certain documents or information. 

For example, if you need bank statements and your former partner isn't giving you those statements, you can issue a subpoena directly to their bank (e.g. the Commonwealth Bank). Following this, the bank must comply with the subpoena (unless they have a good reason for not doing so) and send these documents to the court where you can access them. 

7.   Evaluate.

7.   Evaluate.

Finally, you need to evaluate the outcome. To see if you have overcome the risk of non-disclosure.

This will involve looking at what the subpoena has produced and seeing whether you have found what you were looking for. 

If you have overcome this risk you can move on to the next obstacle and go through the steps again until you reach your objective. 

If the subpoena hasn't produced what you wanted (e.g. your former partner doesn't actually have a bank account at the Commonwealth Bank) then you will need to go back confirm that your objective hasn't changed and execute a new set of actions (e.g. issue further subpoenas to NAB, ANZ etc.) until you achieve the desired outcome. 

Want a free tailored, step-by-step plan to find your partner's hidden assets?

Created by a qualified lawyer with no obligations.

If you have any questions regarding hidden assets or your property settlement feel free to call us on 1300 767 384. Alternatively, book in for a free phone appointment above for your own step-by-step plan to find your former partner's hidden assets. It's created by a qualified lawyer and it's fully tailored to your situation. 

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How To Apply For Spousal Maintenance

How To Apply For Spousal Maintenance

You've figured out that you may be entitled to spousal maintenance but you are not quite sure how to get it.

Well, in this article we're going to show you how to do just that.

We're going to take you through the steps you need to complete in order to successfully get a spousal maintenance order:

  1. 1
    Prove that you (the applicant) are unable to support yourself adequately; 
  2. 2
    Prove that your former spouse (the payer) is reasonably able to pay your spousal maintenance;
  3. 3
    Make the application. 

So let's get into it.

Spousal maintenance

Step 1: Establish that you (the applicant) are unable to adequately support yourself.

To prove that you are unable to adequately support yourself, you must provide evidence about what your reasonable weekly needs are.

These may include things like:

  • rent; 
  • electricity;
  • groceries;
  • medical related expenses;
  • petrol,

just to name a few. 

Then you must be able to show that you yourself do not have the ability to meet those reasonable needs.

You'll have to file evidence about your income, including any entitlement to government benefits. However, being entitled to government benefits may not reduce your entitlement to spousal maintenance.

Spousal maintenance

Once you've provided evidence about what your needs are and the fact that you cannot meet those needs, you must then be able to show that your former spouse can meet the reasonable needs that you are claiming.

Which takes us to step two.

Step 2: Establish that your former spouse/ partner (the payer) is able to meet your reasonable needs.

This can be proved by, for example, showing a surplus amount in their income each week. 

Your former spouse will therefore need to provide evidence on their income and any financial resources available to them and their expenses.

If you can then point to a surplus in their income each week or a resource available to them to meet your needs, then you have satisfied this second step.

Spousal maintenance

If you can do both of these steps, then you are likely to be successful in your application for spousal maintenance.

Step 3: Apply for spousal maintenance

In order to apply for spousal maintenance, you must file 3 documents: 

  1. 1
    An Initiating Application 

This is a document that sets out the amount you are seeking each week or month or as a lump sum. 

  1. 2
    An Affidavit

This document is a statement of facts. It is what you will rely upon to argue why you should receive spousal maintenance. For example, it should explain your prospects of employment and reasons why you cannot gain employment, if that is the valid reason.

  1. 3
    A Financial Statement

A financial statement is a document where you will set out all of your reasonable weekly needs and all of your income. 

Time limits to apply. 

Now, there are time limits surrounding when you can apply for spousal maintenance.

These are the same time limits that apply to a property settlement.

So it's:

  • one (1) year from the date of your divorce order if you were married; and
  • two (2) years from the date of separation if you were in a de facto relationship.

Of course, if the Court grants you 'leave', which is basically permission, you may be able to bring an application outside of those time frames.

Spousal maintenance

If you are successful in your application, then spousal maintenance may be paid to you:

  • Periodically, e.g. a weekly or monthly amount; or
  • As a lump sum, e.g. a one off $30,000 payment. 

It may even be paid in other ways such as paying your mortgage or your rent repayments.

Importantly to note as well, spousal maintenance is in addition to a property settlement.

For example, just because you've received a lump sum spousal maintenance this does not come off your final property settlement that you may be entitled to.

Spousal maintenance

If you have any questions about spousal maintenance or the application process, please feel free to give us a call on 1300 767 384.

We offer free, 15 minute phone consultations where you can ask any questions you may have. It'll also gives our qualified family lawyers an opportunity to give you further advice about your situation.

Alternatively, you can always email us at [email protected]

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What Is Spousal Maintenance?

What Is Spousal Maintenance?

& Am I Entitled To It?

A common question we get from people who are separated is:

My former spouse cut me off financially, how do I keep paying the expenses?

Which can be a tricky situation if it means you can't pay your own bills.

If you find yourself in a position like this - where you and your former partner have separated, and you can no longer adequately support yourself, then you may be entitled to a thing called spousal maintenance.

spousal maintenance

What is spousal maintenance?

Spousal maintenance is financial support paid by one person to their former spouse or de facto partner.

This is done in situations where one person is unable to adequately support themselves, and the other person has the capacity to support that person.

Is spousal maintenance different from child support?

Spousal maintenance is financial support for you or your former partner. It is not for your child. 

Child support however as you would expect is only for the child. 

Because they are two different things, you can actually claim both of them at once if you're entitled to both.

spousal maintenance

Why does one person have to support their former spouse or de facto partner when they are no longer together?

In the eyes of the Family Court, the end of a marriage or a de facto relationship does not end the responsibility you have to financially support one another. 

So if you are a party to a marriage or a de facto relationship, then you are liable to reasonably maintain the other party, if and only if the other party is unable to support themselves adequately.

Who is entitled to spousal maintenance?

You are only eligible for spousal maintenance if you were:

and you have applied within the relevant time limits:

  • within 1 year after the date of divorce if you were married; and
  • within 2 years of separating if you were in a de facto relationship.

You can only apply for spousal maintenance outside of these time limits if you have permission from the Court to do so. 

Along with this you must also pass the threshold test.

spousal maintenance
spousal maintenance

The Threshold Test

The threshold test involves two steps.

  1. 1
    You, the applicant, are unable to support yourself adequately; and 
  2. 2
    The payer (your former spouse/partner) is reasonably able to pay.  
spousal maintenance

Step 1: You, the applicant, are unable to support yourself adequately.

Now, step one isn't just about showing that you have a need for spousal maintenance. It's also about demonstrating your inability to meet that need yourself.

This might be due to an adequate reason, such as:

  • you have care of a child who's under the age of 18;
  • you are unable to gain appropriate employment due to your age or a physical or mental incapacity; or
  • another adequate reason the Court may consider. 

We often see maintenance in situations where parties have been together for a long period of time. One spouse has stayed at home and raised the children, and the other has gone out and worked.

At separation, one party may have been out of the workforce for 20 years, for example, and is unable to simply return without further training.

In this circumstance maintenance would be paid, for example: