PROPERTY SETTLEMENT FOLLOWING DIVORCE: WHAT HAPPENS AT MY FIRST CONSULTATION?

Deciding how to divide up your property with your ex-partner can be a huge added stress to even the most amicable of divorces. A good lawyer can help guide you through this process so that you receive an appropriate settlement.

When?You do not need to wait until you are divorced to finalise the division of your property. We recommend that as soon as you decide to separate, you consult a lawyer to talk through your options.

If you wait until you are divorced, and you wish to apply to the court for a property settlement, you must do so within 12 months of the finalisation of your divorce.

Which lawyer?You and your partner cannot have the same lawyer or even use different lawyers from the same law firm. This is because your lawyer (and by extension, your law firm) is representing your interests, not your partner's interests.

YOUR FIRST CONSULTATION

Be prepared

To enable you to get as much as possible out of your first consultation with your lawyer, it's a good idea to bring the following with you to your appointment:

• a list of all your assets and liabilities (for example, credit card debt, any large unpaid bills, etc); • details of any superannuation policies that you or your partner have including the current balance; • details of the current income earned by you and your partner; • details of your bank accounts including current balance; and • any other matters relating to your finances.

If possible, it's also a good idea to prepare a timeline of important dates in your relationship including: • your cohabitation, marriage and separation dates; • the birth dates of any children; • the date of the sale/purchase of assets; and • employment histories for you both.

If possible, you should also bring any other relevant documents including: • any supporting documents, such as your marriage certificate or Apprehend Violence Order (AVO); • any documents or letters received from your partner's lawyer.

While you are gathering your documents and preparing your timeline, it is a good idea to write down a list of questions that you can take to your first consultation to ask your lawyer to make sure you don't forget anything you want to ask.

The Consultation

At your first meeting, your lawyer will ask you questions to get a better idea of your situation. Some of these questions may feel very intrusive. However, the more open you are with your lawyer, the better your lawyer will be able to provide you with thorough advice and represent your best interests. Your lawyer also has a strict legal obligation to keep whatever you tell him or her confidential, therefore anything you say cannot be repeated to any other person without your permission. Your first meeting is also the time to let your lawyer know about any unusual or particularly difficult circumstances. For example, if your partner is, or has been, violent toward you or your children.

Once you have discussed your situation, your lawyer will be able to give you advice about the type of settlement you are likely to receive should you negotiate your property settlement with or without going to court. Your lawyer will also be able to advise you about whether going to court or settling out of court would be most appropriate in your circumstances.

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Settling out of court Going to Court

MAKE A DECISION

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You do not have to go to court in order to reach a legally binding property settlement. In fact, most property settlements are arranged by lawyers without the intervention of the court. The only time you must go to court is if you cannot reach an agreement with your partner. Mutual agreement

You and your partner may have already come to an informal agreement as to the division of your property. In this case, your lawyer can carry out the necessary tasks to ensure that this agreement becomes formal and legally binding.

Collaboration

Even if you and your partner have not agreed on how to divide your property, your lawyer can help you to do this in a number of different ways including:

• drafting an property settlement offer and send if to your partner or his or her lawyer in order to commence negotiations; or• representing you at a round table negotiation together with your partner and their lawyer in order to try to reach an agreement; or• arranging and supporting you through a mediation with a neutral and independent mediator.Whichever way the agreement is reached, your lawyer can then ensure that it is made formal and legally binding.

If you cannot reach an agreement with your partner, then you will need to go to court. Your lawyer will make all the necessary arrangements. Up until the final hearing in court, there are numerous opportunities to come to a mutual agreement on the property settlement without the imposition of a settlement by a judge. If your matter does not settle at various stages during the court process then your matter will be finalised at a final hearing where the judge will decide the property settlement, which will then be legally binding.

There are a number of factors the court considers when making a property settlement including:

• the assets (including superannuation), liabilities you and/or your partner had at the time of cohabitation or date of marriage (if you did not live together before getting married);• you and your partner's contributions to the assets, whether financial, non-financial contributions or contribution by way of being a homemaker or full time parent;• the future needs of each party; and• whether the settlement is fair.

When determining whether a settlement is fair, the fault of either party in relation to the divorce or separation itself is legally irrelevant.

Owen Hodge Lawyers have expert divorce lawyers who would be happy to help. Call us today on 1800 770 780 or contact us via ohl@owenhodge.com.au to schedule a consultation with one of our experienced family lawyers.