Advice from a family lawyer: 5 steps of divorce

Advice from a family lawyer: 5 steps of divorce

By Rianie Huggins, Associate Boylan Lawyers

 

A new year brings a fresh start for many. In the world of family law, this means I am approached by couples looking to divorce after the stresses of the Christmas season. Many couples stay together and ‘bunker-down’ through the Christmas period, often for their children. However, when the new year arrives, they decide they can’t go on. 

Deciding to divorce is a tough decision, but also a decision that takes bravery to believe you are making the right choices for your future. As a family lawyer it is my job to support couples through the next steps. Here are five steps typically involved in the divorce process. 

1. Get advice: First and foremost, it is important you receive quality advice from a family lawyer. They will help you create a plan that is specific to your personal needs and situation. Your lawyer may also direct you to speak with an accountant or financial planner.  

2. Property settlement: Find out what assets, debts and financial resources are up for negotiation regardless of who brought them into the relationship. Your lawyer will likely organise valuations and reports required to settle your property or distribute assets.  

3. Parenting Arrangements: Work with your family lawyer how much time each parent receives with the children.  

4. Wills and estate planning: Divorce automatically revokes a will. Before you settle, make sure you protect your assets, and your future wishes with a fresh will and estate planning. Not updating your will as a divorced person can lead to disputed estates in the future.   

5. Conveyancing and asset transfer: If you decide to sell the assets you own or purchase new assets, you will need help from a conveyancer that can guide you through the process.  

The success of negotiations will determine whether you and your ex settle or go to court. The court process is extensive and can be time consuming. Once negotiations or court matters are settled, you can organise conveyancing of the matrimonial home and other assets. You can also settle payments for financial distributions. Once this is complete, the process is now over, and you can take a breath.  

The above process is stressful, which is why it’s important to have the right team behind you. Boylan Lawyers can support you through every step of your separation plan. Our family law team has a combined 86 years’ experience. Get a free 30-minute consultation by calling (08) 8632 2777 or email admin@boylanlawyers.com.au 

 

Rianie Huggins, Associate Boylan Lawyers

Rianie Huggins is an Associate at Boylan Lawyers who specialises in family law, estate planning, probate, trusts and more. Rianie has extensive international and local experience in law. She loves being part of the Strathalbyn community and enjoys seeing the unique offerings from talented Artisans throughout the Adelaide Hills and surrounds.  

How to navigate Christmas arrangements as separated parents

How to navigate Christmas arrangements as separated parents

By Sebastian Hill, Managing Partner at Boylan Lawyers

 

Navigating the Christmas period as a separated family can be stressful. Separated parents need to plan how they’ll share time with their children on the dates of importance (i.e., Christmas, New Year’s Eve, etc.) and what travel arrangements are appropriate during COVID19.

We provide general advice on the commonly asked questions received from separated parents who are trying to navigate the festive season.

What Christmas arrangements are available for separated families?

Plenty of options are available for separated families to share time with their children throughout the holiday period. Examples of Christmas arrangements might include:

  • Children with one parent on Christmas eve and Christmas morning, and with the other for Christmas afternoon and boxing day.
  • Children with one parent for all of Christmas, but with the other parent for a couple of hours during the day.
  • Children spend all the Christmas holidays with one parent, which then changes the next year.
  • Continue with your usual arrangement if Christmas is not a significant holiday for your family.

Most importantly, both sides need to be happy with the arrangement that is chosen and commit to it. Be polite and civil during negotiations. Nothing makes a matter worse than conflict and threats.

 

What happens if my ex is being difficult and/or threatening to not go ahead with our plan?

Whether you are newly separated or have been separated for a while, it is important to understand your rights.

If you do not have a court order in place, care arrangements for children are not enforceable. The option to have a judge decide how you and your children spend Christmas is also not an option in December due to the court’s cut-off date.

At the forefront of your actions should be what is in the best interests for the child. They have a right to see both parents and share in the joys of the holidays. Either parent is entitled to make decisions about their children. However, parents need to think about the potential consequences of their actions such as litigation, difficulties with future negotiations or arrangements, and disruption to their children’s life.

Parents should talk to each other and see what arrangements they can make. Parents should also meet with their lawyer to work out an arrangement that is fairer and more concrete in the new year.

 

My ex wants to travel interstate with our children, and I am worried about COVID19, what can I do?

Generally, it is difficult to get an urgent court listing, and much will come down to the respective COVID laws in place at the time. Questions that would be considered include ‘Are the borders closed for re-entry?’, ‘What state are they going to?’, ‘What are the quarantine obligations on return?’. These are no simple questions, and each case will turn on its own circumstances.

If there is a court order, there might be a “reasonable excuse” for non-compliance with any existing order with respect to allowing travel or not. A primary carer probably faces less adverse legal consequences than a contact parent for travelling or not allowing the other to travel.

An urgent legal letter from your lawyer putting another party on notice may prevent or ensure an outcome. This might also become useful in the future.

With regards to how much the police can help, they prefer to not get involved with family matters. Police will do welfare checks (to a point) and keep the peace. They will not take your children away because the other parent has told you they will. If your children are in danger, the police will step in.

 

Family and domestic violence services are available

If you are experiencing violence or abuse, family and domestic violence services are still open over Christmas. Don’t think that it is too hard to leave or do something because everyone is closed. If you are not sure what or where to ask – talk to the police. If the police cannot help you themselves, they can direct you to those services who can. Help will be available if you need it.

The Boylan Lawyer’s family law team has a combined 86 years’ experience working in family law, wills and estates, and probate. We are committed to protecting the rights of individuals and families. Clients are now supported from offices in Adelaide CBD, Port Pirie, Strathalbyn, Victor Harbor, Port Augusta, and Whyalla.

 

Book a free family law consultation today by clicking here.

 

Sebastian Hill, Managing Partner

Sebastian Hill is the managing partner at Boylan Lawyers. Sebastian oversees all practice areas and has a specialist interest in family law, estate disputes and intergeneration farm transfer. Sebastian provides clients with clear, considered, and practical advice.

Sebastian is a passionate contributor to the legal profession in South Australia having served as a member on several Law Society of South Australia Councils and Committees and as a board member of Westside Community Lawyers.

Binding Financial Agreements and Consent Orders

Binding Financial Agreements and Consent Orders

Separation | Boylan Lawyers

Binding Financial Agreements and Consent Orders

 

Separation is one of the most strenuous times a person can go through. The process of dividing property can sometimes be worse than the final split itself.  It may seem simple at first, but the reality soon hits things can become complicated. It can become more than just “You take this, and I’ll keep that”.  Properties can be in joint names, mortgages and debts are also often in joint names. Superannuation is considered property of the relationship and so that also needs to be factored in. What was a simple and amicable split has now turned nasty and hostile. The idea of writing and signing an agreement can seem quite scary, but all is not lost!

Written agreements are quite common. This is especially the case when people are trying to arrange for the transfer of property and the division of superannuation between parties. In fact, in order to divide superannuation a written agreement needs to be provided to the superannuation company (trustee). So, what does a written agreement look like? Can I afford it? Do I need to go to court? Do I need a lawyer?

There are two main types of written legal agreements that can be made. They are binding financial agreements (BFA) or court orders. Court orders can be made by the court by applying to the court. While some matters need to go through the court process to resolve issues that cannot be resolved by agreement, they can also be made by consent between parties which don’t involve going to court, just an application to the court.

In this article, we’re focusing on agreements made together, or by consent. So that is binding financial agreements or Consent Orders. Often, we’re asked what is the better agreement to have?

The answer can vary for many reasons. Binding financial agreements may be appropriate for some people but completely inappropriate for others. It will depend on the individual circumstances of each case. However here is a guide that might help make that decision a bit easier.

This is intended as a guide only and you should always seek legal advice on your individual circumstances. While lawyers do charge a fee, it is a small cost for reducing the stress and complication that can arise when trying to draft a written agreement between two people who are still dealing with the raw emotion of separation.

Costs

Binding financial agreements are generally cheaper. There is no filing fee with the court and the main costs are just in drafting the order and getting information.

Consent orders have an application and agreement (orders) to create as well as a filing fee with the court.

Time

Because there is no need to file with the court, the process of creating and signing a binding financial agreement is much shorter.

Independent overview

Binding financial agreements are drafted with lawyers (sometimes without) on the bases that they are just and equitable. The reality is that they sometimes are not. People can end up agreeing to something when they are entitled to more. Once you have signed a binding financial agreement, it becomes legally binding and to overturn it you have to make an application to the court. This can create more costs for both parties.

Consent orders are looked over by a Registrar of the Court – they go through the calculations and information provided in the application to assess if the orders are just and equitable. For example, if the orders state a 80-20% split but it has been a long relationship with equal contributions, they will send the order back and ask for an explanation for the one sided split or that they agreement reassessed and resubmitted.

Stamp duty

Often people have houses and parties can save on transfer costs with consent orders. This helps both parties as they have a legally binding and fair order while maintaining their estate’s wealth.

What if someone doesn’t do what they are supposed?

A good agreement will have clauses that allow for the resolution of an issue arising from someone not doing what they are supposed to (i.e. not paying money). Many binding financial agreements as these clauses, however, there are circumstances where a party will have to initiate proceedings with the Court to get the agreement to be followed. This can be quite a costly exercise as you need to explain the agreement to the court, explain how it is a good agreement, in that it is fair and just; and then explain to the court what has happened and what orders you are seeking resolve the issue. Essentially you are asking the court to make a binding financial agreement into a court ordered order.

Consent orders work differently. They generally will have a clause that allows the Registrar of the Federal Circuit Court or Family Law Court to sign on behalf of the non co-operative party. This is a simple application, without a filing fee, and does not require the costs of an initiating application and affidavits. You don’t have to explain the agreement to the court because the court has already seen it and agreed with it.

Clean cut

Consent orders made by the Court are designed to create a clean cut between parties. No longer are they bound together financially. This means if a house is to be transferred, timelines for that to occur do not drag out forever.

Binding financial agreements, while also looking to create a clean cut, are not as bound to rules of a quick resolution. Some binding financial agreements can last for years, but for good reason. It may allow time for one party to take over the mortgage on the house, for instance. The issue arises when years down the track, what seemed like a good idea, is no longer possible or wanted. The agreement is still binding and still must be followed.

 

It is important to know that both documents are legally binding. Binding financial agreements come from a place where there is trust between parties. Consent orders also come from a place of trust but also come from a place where people want a little reassurance that when things go wrong, they can be resolved more quickly and efficiently.

 

At Boylan Lawyers, we can complete both forms of agreement with advice on the best option for your individual and personal circumstances. We can assist you to draft a written agreement saving you and your ex-partner time and stress.

If you are going through separation and want to know what your rights are, please contact us and make an appointment.

Contravening Parenting Orders During COVID-19 Lockdown

Contravening Parenting Orders During COVID-19 Lockdown

Co-parenting COVID-19 | Boylan Lawyers

COVID-19 has caused a great wave of issues throughout our community. One of those issues has been the significant increase in disputes regarding the care of children in separated families. Some parents have elected to depart from the usual care arrangements without consultation with their counterpart. This has resulted in a variety of disputes concerning the contravention of an order whereby a parent has intentionally failed to comply with an order.  It has also aggravated issues that would have otherwise remained dormant. 

The increased of the rising disputes is evident by the need by the Family Court to create a special Court list for parent related disputes that arise due to the coronavirus. [See: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/jpd032020]

The general comments by the Family Court have been that parties need to use common sense as a result of their response to the challenges created by the pandemic.

Unfortunately, such common sense is not always possible among parents because there is a level of animosity which makes it very difficult for reasonable discussions to take place. 

What is in the interest of the child remains the paramount consideration.  Family Law Act 1975 (Cth) sub-div. F div. 13A pt. V11, s. 43(1)

Kardos & Harmon [2020] FamCA 328 (7 May 2020) is a recent judgement in the family Court which highlights the need for parents to be pragmatic when dealing with the COVID-19 pandemic.

In that matter, the father lived in Brisbane and made an application that final orders had been contravened by the mother who resides in Adelaide. The mother contended that the circumstances of the COVID-19 pandemic provided a reasonable excuse for her not to travel to Brisbane to deliver the child.  The court found that the mother had not contravened the final orders and had established that she had a reasonable excuse for non-compliance with them. The Court went on to vary the final orders to facilitate the father spending time with the child. The net effect of the court’s orders were that the father would need to travel to Adelaide, and be subject to quarantine requirements, should he wish to see the child however in the event that he did not travel to Adelaide then the child would have make up time with him at a later date.

Kardos & Harmon provides some guidance to parents in different states or territories, but it becomes more difficult for those within the same state.  In those cases, whether there is a reasonable excuse is a far more difficult question to answer.  Those parents who tie themselves to the public health notifications (such as https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/conditions/infectious+diseases/covid+2019/coronavirus+disease+2019+covid-19), which are considered by the Court, will most probably find it difficult as the restrictions ease.   Not long ago most state governments were considering whether schools would be open or not and parents choosing to keep children at home for their safety. Things have changed dramatically since then and now what was once a reasonable step would now be seen as unreasonable.  This should cause great alarm for those parents who have acted unilaterally to contravene orders under the guise of a reasonable step in response to COVID-19.  In hindsight, their actions will not be viewed positively.

Different judges will have different interpretations of when a party is acting from a health and well-being approach as opposed to capitalising or taking advantage of the crisis. It would depend on the context and history of the particular matter and the nature of the contravention.  The result is that parents must seek legal advice to understand their position in light of their specific circumstances. Those who are opportunistically taking advantage of some of the restrictions should be immediately cautioned and asked to reconsider their position. 

In addition to getting specific legal advice about parents breaching orders because of COVID-19 restrictions, there are also resources that can help guide parents with the difficulties of managing parenting during the pandemic. One of those resources has been produced by the Law Council of Australia and can be found below. It provides practical steps that can assist parent’s with coping. 

The time taken to traverse the Family Court system is increasing exponentially with these matters.  There is always an opportunity to privately mediate the issues in order to reach a pragmatic compromise however if that is not possible then matters must be advanced as a priority rather than being delayed as each day goes by. 

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