Considering Separating - read this first
Posted on 13 February 2023
Allyson Anne
Are You Considering Separation? Read this first!
The Summer holidays are over, you made it through Christmas and now the kids are back at school. You have been thinking about if for a while, though aren’t too sure on how to go ahead with either separation or divorce.
The way in which you conduct yourself in the lead up to and post separation is so important to getting the best result for you and your family, remaining civil, and avoiding costly (and lengthy) litigation with your now ex-partner.
Before you separate, make sure you do these things:
Put together a plan.
You have let your ex-spouse know its over and you want to separate on a final basis, but now what? Before you separate you will need to have a plan in place, make sure you write it down, so when things start to get difficult you can refer back to your plan and use it like a list and start ticking off the items. Think about the following to include in your list:
- Where will you live? Your best option is to stay in the family home and ask your spouse to move out, this is because once you give up the family home it is difficult to get back your right to occupy the property. However, if you are experiencing domestic violence then it will be necessary for you to leave, but don’t worry this doesn’t mean you give up your entitlement to a property settlement.
- Will you have access to money? Ideally, it will be best for you to open a separate bank account in your sole name and before you separate start to put some money aside for you to use in the early stages of separation. Once you have separated depending on your circumstances, get in contact with Services Australia and Child Support and make sure you let your employer know your new bank details.
- Protect yourself and your privacy. You might have joint subscriptions, or joint access to your emails, or be signed into your emails on your partners phone, tablet or computer. Make sure you change your password and select sign out of all devices, so your information is protected and your now ex-spouse cant go looking through your emails to see what you are up to (it’s more common than you might think!).
- Your will and Enduring Power of Attorney. What happens if you are in an accident, you pass away or your loose capacity. Make sure you check your documents to see who will be the executor of your estate, the beneficiary of your estate and who will be making decisions if you do not have capacity to do so. It is more often than not your now ex-spouse, which for obvious reasons will need to be changed.
- How is your home or investment property held? There are two (2) ways in which you are able to hold property, as joint tenant or tenants in common. The difference is as joint tenants on your passing your share of the property immediately transfers to the surviving joint tenant. As tenants in common, on your passing your share of the property is distributed in accordance with the terms of your will.
Get copies of all the financial documents which you can get access to.
This is one of the most important steps. When you think financial documents, think what assets do we have, what liabilities do we have and what are our financial resources. It doesn’t matter if it is in your name, your current (soon to be ex-spouses name) or in joint names, it’s (subject to some exceptions) included in the property pool, so get copies of what you can! Pay slips, bank statements, tax returns, superannuation statements, credit card statements, investment accounts, share trading accounts. Anything which you think might be relevant, take a copy.
Its not uncommon for a party to try and hide assets, and it can sometimes be impossible to get details of the assets which they hold in their name without commencing proceedings with the Federal Circuit and Family Court of Australia.
The Children.
What will the arrangements for the children be? A common saying is two (2) happy homes are better than one (1) unhappy home, though it will certainly take the kids time to adjust, so making sure you have a conversation (depending on their age) about what is happening and explain what will be happening regarding mum and dad and the time they will spend with each of you. You don’t have control over how your ex-spouse will respond regarding the separation, and if it is the case that your ex-spouse is in a state that they are not able to care for the children just yet then you will need to be prepared to be the one (1) that is their certain and consistent. Things will generally improve over time, though be prepared for some rough days in the early stages as the children get their heads around what is going on.
Get advice early.
You don’t wake up one day and decide to separate and then separate on the same day, you will have been thinking about it and planning how it will all play out. One of the best things you can do it get advice early! Not advice from your friend, or someone who knows someone who has been through it and knows what will happen. Everyone has different circumstances and each matter is different and needs a tailored approach.
It is very normal to feel overwhelmed and like it is all too much, there is a lot which you need to think about before letting your spouse know about your decision. It is more often than not that we see our clients for the first time after they have separated, though you need to think about meeting with an experienced family lawyer before you separate. Get the advice early and work out how you are going to approach the separation at the outset, it will most likely save you thousands in lawyers fees and be a much quicker process to reach an agreement with your ex-spouse.
HOW CAN OMNIA LEGAL ASSIST YOU?
If you would like to schedule an obligation free complimentary phone consultation to talk through your option, get in contact at (07) 5415 0248 or email info@omnialegal.com.au.
This article provides general information on legal topics for educational purposes only, and should not be considered legal advice or recommendations. While we have taken care to ensure accuracy, Omnia Legal is not responsible for any errors, and makes no guarantees about the accuracy or completeness of the information. Links to third-party websites do not constitute an endorsement, and we are not liable for any damages that may result from using inaccurate or incomplete information. It's always best to seek legal advice for specific situations.