20th May, 2020

Getting a divorce but don’t know where to start?

Black and white photo of a man and woman standing on the water's edge facing away from each other in what appears to be a bleak setting and text displayed 'Getting a divorce but don't know where to start?'

In the wake of a separation it is easy to feel overwhelmed by all the decisions that need to be made – especially about finances and children’s care arrangements. Taking one step at a time will make it all manageable, and getting an overview can help you decide where to start.

There are 5 main topics you’ll be needing to think about.

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Parenting

If there are children in your family then you’ll need to make some decisions about their living arrangements. You won’t have to make long term decisions straight away, but there will be some urgency about making short-term plans for their care. There is no requirement to document the decisions you make – but if you think that would be helpful then you will want to learn a bit more about Parenting Plans and Consent Orders. I can give you some more information about this, if you need it.

Parenting is a topic you’ll need to keep coming back to because you’ll be forming a new relationship as co-parents at the same time as you are ending your relationship as spouses or partners, and that might take some negotiating to get right.

 

Financial support for children (aka ‘child support’)

If you are separating with children, you’ll also need to be making plans about their financial support. In many separated families one parent will make regular payments to the other parent, as a contribution to the financial support of the children. The amount of these payments might be determined by agreement between the parents, or by the Child Support Agency (CSA).

If the CSA determines the amount it will, as a starting point, use a formula, which takes into account the number of nights the children spend in each parent’s care, the income of the parents, and the ages of the children. The CSA has an easy to use ‘child support estimator’ which can be a useful starting point. If you’re looking at arrangements that are different to the child support formula, then you might want to document it as a Child Support Agreement. Even with child support arrangements in place, there is often a need for the sharing of children’s expenses. Talking through your expectations about this ahead of time can help prevent conflict in the future.

 

Property settlement (and sometimes spousal maintenance)

Most separated couples will also need to make decisions about dividing up their assets, debts and superannuation entitlements. Sometimes (but not often) there will also be a need for one person to provide ongoing financial support for the other person (which is called ‘spousal maintenance’).

It’s important to be aware of time limits for making these decisions. If you’ve been living in a defacto relationship then you’ll need to come up with an agreement within two years of separation. If you’re married then you will have 12 months from the time you divorce (which means, in practical terms, at least two years, because you can’t get divorced until 12 months after you separate).

It’s almost always a good idea to formally document the decisions you make about property settlement (and spousal maintenance) – and this is essential if you plan to redistribute superannuation entitlements as part of your agreement. The most common documentation is Consent Orders – but for some families a binding Financial Agreement is a better option. I can give you more information about the differences between Consent Orders and Financial Agreements, if you need it.

 

Divorce

In common conversation ‘divorce’ is often used to describe the whole process of separation, and the decision-making that follows. But legally it’s quite a narrow concept – it is the ending of a legal marriage. You need to be separated for 12 months before you can get divorced and when you’re ready, it is (almost always) a pretty simple administrative process.

 

Wills and enduring powers of attorney

In the midst of separation people often forget they have signed a Will, or power of attorney, that contains provisions that don’t make sense in their new circumstances – especially if they gave their spouse or partner power to make medical decisions if they are incapacitated. There is some complexity to the law in relation to the operation of Wills where there has been a separation or divorce, so it is wise to get legal advice if you are drafting a new Will after separation.

Whether you want a divorce, or have found out your partner wants one, there are lots of decisions to be made after separation. If you’re finding it tricky to talk through these decisions together don’t worry - Family Dispute Resolution can help with that.
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As a mediator I often get asked “How can you tell if people will be able to reach agreement?’ It’s a question I’ve been pondering all the 20+ years I’ve worked in the family law...

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As a mediator I often get asked “How can you tell if people will be able to reach agreement?’ It’s a question I’ve been pondering all the 20+ years I’ve worked in the family law...

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