When a couple decides to divorce, often their lives are in a state of significant change. There may also be conflict and emotional stress. This means that separation can be a confusing and difficult time and it can be a challenge to think about what happens after separation: the steps to divorce or reconciliation, property division and parenting arrangements. But a little bit of forward planning can go a long way to assisting a smooth transition and protecting your rights. Here are our six most important steps to take after separation.
Separation and important dates
One of the most crucial aspects of any separation is that key dates are known. For example, the date of separation. This date may become important later, for example the parties may wish to treat their finances as separate from the date of separation. Also, Australian law says that married couples must have separated for at least one year before divorcing.
Occasionally, parties may separate but remain living under the one roof. There are a range of reasons why this may happen, for example financial reasons, or for the benefit of the children of the relationship. In these circumstances, it’s even more important to record the date of separation because later proving it can be more difficult if there’s disagreement.
Another key date is the date that one party moved out of the home. Sometimes this isn’t the same date as separation. For example, if the parties separated but remained living under the same roof for a period of time.
If there are children involved, they may spend most of their time living with one parent. They may have only limited contact with the other parent until a there is parenting agreement. If this is the case, it’s important to record the dates on which the second parent has contact with the children, whether it be by telephone, face to face or by other means.
One of the most effective ways to keep track of the dates is to record them in a diary. Be sure to record as many details as possible at the time of, or soon after, the event. For example, who said what and the location of any meetings or conversations. This process is known as “contemporaneous” note-taking. There are two advantages of this process:
- It helps to ensure that your notes are accurate.
- If the matter goes to Court, there is a good chance that the Court will find that your notes add credibility to your case.
Understand your financial position
Understanding your financial position is one of the most important steps protect your longer-term financial interests. For starters, you should gather as many documents as you can, including:
- Bank statements showing account balances at the time of separation.
- Both parties’ most recent tax returns.
- Both parties’ superannuation fund balances.
- Information about any mortgages, for example balance and repayment liabilities.
- Details of any other debts, for example credit cards and personal loans.
You should also make a list of any other assets, for example:
- Any cars belonging to you and your ex-partner, the odometer reading at the time of separation and other details, for example the make, model and year of manufacture.
- Any shares held by either party and their market worth as at the date of separation.
- Financial details of any business owned by you or your ex-partner.
You will also need to consider future management of any joint bank accounts. For example, have you and your ex-partner agreed not to access those accounts? If your employer is paying you via a joint account, is it necessary for you to redirect any pay into a separate account? From which account will you pay the bills? Who is responsible for continuing to pay any debts in the immediate future?
What happens to the kids?
The sooner you put in place parenting arrangements, the easier the transition will be for any children of the relationship. This can be difficult, especially if there is conflict between you and your ex-partner. You may need the assistance of a lawyer and perhaps even family counsellors to try and reach an agreement.
Consider the practicalities of the separation and how it may impact the kids. For example, if your new home is a long way from their school and from your ex-partner, how will the additional travel time affect the kids? Will they have to go to a different school? Will it cause further conflict with your ex-partner?
Focussing on the wellbeing of the children can sometimes relieve some of the conflict between the parties. If a Court is called upon to intervene, it will usually to look more favourably on parties who act in the best interests of their children.
Keep track of the items that are important to you
You may own valuable items, or items that have sentimental value. You may have had to leave the family home without them, or you may be at risk of relinquishing them to your ex-partner if there is disagreement over who should keep them. For example, valuable jewellery, musical instruments, antique furniture, art work or any pets. Make a list of any items that you wish to keep, and/or that you wish to recover. This is best done soon after separation when things are fresh in your mind. It will help you clarify what it is that you want when you are negotiating a property settlement.
Consider reconciliation or divorce
One of the reasons that Australian law requires that a married couple has separated for at least twelve months prior to divorcing is that it gives the couple an opportunity to work out whether there is any chance of reconciliation.
In fact, for the Family Court to grant a divorce to a married couple, it must be established that there is no chance of reconciliation. That is, that the marriage has irretrievably broken down.
Because of this requirement, you should carefully consider whether you wish to engage in relationship counselling, or whether there may be another way for you to reconcile with your ex-partner. If not, you may need to put some steps in place to divorcing (although there is no maximum time limit on the duration of separation). Consulting a lawyer is an important step in this process.
Consult a divorce lawyer
It’s important to consult a divorce lawyer as soon as possible after separation, or before you separate if you know that it’s about to happen. A lawyer will be able to guide you through the process of divorce (if you’re married), property settlement and/or negotiating a parenting agreement.
Lawyers are experienced negotiators and can assist you to work out what property settlement would best meet your needs, advise you on how the law and the Court system operates, negotiate parenting agreements and orders, and ensure protection of your rights.
Lawyers do their best work when they have a clear picture of all the relevant aspects of your relationship. It’s important to provide your lawyer with as much information as possible about important dates, your financial position, the assets and liabilities of the relationship and the welfare and needs of your children. You should provide all information, regardless of whether you think you may be in the wrong.
If there has been domestic violence or abuse, a lawyer can also act quickly to protect you and/or your children from further harm.