After combined decades of practicing in family law, every lawyer in this firm will tell you the number one mistake people make following separation is delaying seeking legal advice and worst yet allowing years to pass before finalising a property settlement. Out of the hundreds of matters that we see each year, those that we distinctly remember are the ones who did not seek legal advice from the outset. Why? Because these are the matters with clients who come to you with what can only be described as a “dog’s breakfast” when they have tried to resolve matters themselves or sat on their hands and done nothing. The consequences for those clients are not only costly and time-consuming but, at times, unfixable.
Understandably, a lawyer is usually the last person you want to be speaking to when you have just recently-separated. The reality for most people is that the first few months and sometimes years following a separation can be the most stressful not only financially but emotionally and spiritually. The prospect of having to divide a lifetime of wealth and hard work is daunting enough without having to speak to a stranger about some of your most worthy possessions.
Let me give you some food for thought – when is procrastination ever a good thing?
Really? When is it? I have seen, first hand, the cost of procrastination to my clients who have for one reason or another not finalized a property settlement in a reasonable period of time. Not only are these clients having to consider the division of their wealth accumulated during the relationship but also, their assets and hard-earned wealth accumulated post-separation. This leads me to the number one reason why you should not delay your property settlement?
1. Money earned post-separation. Earnings and contributions.
I am about to blow the most common misconception about property settlement out of the water. Are you ready?
The asset, liabilities and financial resources of the parties which are subject to a division is at the date of agreement (current date) NOT the date of separation.
Let that sink in for a minute.
Now let’s look at this on a practical level. Let’s say hypothetically speaking, upon separation, you remained in the former matrimonial home and were now responsible for the mortgage, outgoings and usual household expenses. All on your own. Now, let say that this was the case for five years, during which you may have reduced your mortgage by a few thousand dollars, perhaps made some improvements to a property that is now yours to live in and maintain. Now all of a sudden, five years later, you hear from your former spouse – I want a property settlement.
Hang on, why are you asking for a property settlement five years after we separated? Who knows. But now you are in a lawyer’s office getting legal advice and all of sudden you realize your former spouse is entitled to a portion of the equity in your home. The home you have contributed to since separation having reduced the mortgage and increased the value with improvements.
What about the five years of superannuation you have accumulated post-separation? What about the debt your former spouse left you with when they moved out of the property? The debt you were left responsible for. Why should they have a claim towards anything that I accumulated post-separation? These are all questions that have been asked time and time again by clients.
While there a few exceptions to this principle, realistically, in most cases the assets and liabilities that are available for division are those available at the time of the agreement. Not the date of separation. In addition, the contributions of the parties are also considered from the commencement of the relationship to the current date not the date of separation.
2. Time limitations on divorce property settlement
The Family Law Act 1975 imposes strict time limitations during which you can seek a property settlement. If this time limitation lapses, whilst not impossible, it is very difficult to seek a property settlement from your former partner. In order to seek a property settlement out of time, you need the Court’s permission which is easier said than done.
For the Court to grant such permissions they must be satisfied that you or a child of your relationship will or is suffering unjust financial hardship. You are also required to justify to the Court why you did not bring a property settlement within the relevant timeframe.
Again, this is not impossible, but it makes what could be a very simple property settlement far more complicated costing you time and money.
So, if you were in a de facto relationship, you must seek a property settlement within two years of the date of separation. For married couples, you must seek a property settlement within one year of the date of your divorce Order. If you are unsure about your time limitation or time is ticking away and you have not taken any steps to finalize a property settlement, you must seek legal advice as a priority.
3. Post-separation financial responsibilities
It goes without saying that whether you like it or not, life goes on after separation. Bills need to be paid, we still need to get to work on time and amongst all of life’s usual stressors, you now have the burden of managing your financial circumstances on a single-income.
The sooner you resolve your property settlement the sooner the financial responsibilities from the relationship that continue to exist post-separation are allocated to the right person. That is the person who ultimately takes on the burden of a liability or the benefit of an asset.
4. Things change, people change, feelings change.
There aren’t many things that separated couples can agree on but one thing most if not all separated couples can agree on is their mutual desire to move forward with their own lives and be free and clear of the other person especially financially.
This is not in any way legally based and is more an observation based on experience. Generally, property settlement matters resolve in the first few months following separation where the desire to dwindle down the list of problems makes people more solutions focused and timely. It is wise to capitalize on the mutual desire to move forward and progress your property settlement matter immediately following separation.
5. The more complicated your legal matter. The more you are going to spend on legal fees.
If none of the above matters to you and you are still thinking of ways to procrastinate your property settlement, then think about this one and only rule that applies to everyone.
Contrary to popular belief it is not the intention of every lawyer to bleed their client’s dry through legal fees. For me, I tell all my clients the same thing, I want to get you in and out as quickly as possible to save us both time and save you money. This becomes incredibly difficult to uphold when clients have deferred resolving their property settlement until their ready.
Like with most problems in life, if you are not 100% committed to resolving the problem, the problem usually gets bigger and more complicated. With a divorce property settlement, the problem gets more expensive to fix and sometimes is unfixable.
While I don’t have a crystal ball and I cannot tell you how long it will take to finalise your property settlement or how much it will cost you, what I can say is that it will be finalized. There is a lot of power in finality and the ability to close one chapter of your life and start a whole new chapter without the stress of financial uncertainty or instability.
Your first meeting with your lawyer is a bit like tearing off a band-aid you’ve left on too long, it would always be easier to just leave the band-aid on and it is too stressful to think about and painful to tear off. Lawyers are more than just lawyers, they are human beings with some of the same stress and problems in life as you, so we can sympathize and empathize with you. Your lawyer should make you feel as comfortable as possible in what is always an uncomfortable situation. They should talk to you in plain English and help you make sense of your situation and develop a strategy to move forward. At Forge Legal, there is more than one way to communicate with your lawyer, whether it be through a complimentary 10-minute discovery session or a strategy session for up to one hour, we accommodate your needs as best as possible. We really just want to get you in the door and offer our expertise to help you in your hour of need. All we ask in return is 10 out of 10 commitment from our clients. That is commitment to working together to resolve your family law matter.