Rarely is anyone ever prepared for the end of a marriage or a long term defacto relationship. This is almost as true for the partner that initiates separation, as it is for the partner being left.

Separation and divorce create a challenging time for families and are a major step for everyone involved. It is a time when you need support, guidance and information on the legalities involved within the separation and divorce process. If you’re feeling overwhelmed, you can talk to someone 24/7 – call or online chat with Mens Line 1300789978 or Lifeline 131114

Plans for your children, division of property and financial arrangements all need to be worked out.
The breakdown of your relationship launches you into previously unknown territory. The ending of a marriage and the impending divorce not only causes you a great deal of distress, you will also encounter a lot of information you are not familiar with adding to the pressure you are feeling.
As separation and divorce is an experience that causes major emotional and financial upheaval this can often make it difficult to think clearly and rationally due to the overwhelming impact of this major life event.

If you have separated, separation is inevitable, or it has been forced upon you it is important to consider the practical steps outlined in this article and work towards protecting your emotional and financial wellbeing.

There are some couples that can navigate through this minefield of emotions, financial settlements and child custody arrangements all without legal advise.  This amicable arrangement can change though when one partner re-partners or they get ill advice from non professionals, if you feel this could be you we recommend the follow strategies.

Speak with a lawyer
Whether you plan to end your marriage, have been the one to instigate the separation, or it has been initiated by your partner, you should speak with a lawyer as soon as possible. The divorce process, while seemingly straightforward, can involve a number of different complexities which, if you do not adequately protect yourself against them, can be extremely detrimental.
No matter how much you trust or want to trust your former partner it is important to understand that once a marriage ends, regardless of who instigated it, your former partner will generally step into a role focused on protecting their own interests.
Being aware of how the law applies to your situation does not necessarily mean you are embarking on the costly process of litigation. It is about being informed, irrespective of how your matter proceeds. By being informed you will find out what you should and shouldn’t be doing and avoid making costly mistakes that can affect your wellbeing for many years to come.
Even if you and your former partner are able to agree on how you will divide your property and/or the arrangements for your children it is still essential to discuss your situation with a lawyer to ensure that you are aware of your rights and responsibilities and that you are receiving the best outcome possible for you and your family.

It’s important not to take any actions or sign any agreements that can affect your rights before discussing your specific circumstances with a family lawyer.

Engaging a lawyer
One of the dilemmas many people encounter when faced with separation and divorce is finding the right lawyer. You may receive recommendations from various sources and these can be great in finding a competent lawyer; however, keep in mind, even though a particular lawyer may have been right for someone else, this does not necessarily mean their particular style or manner will suit you.
It is important to ensure you engage a lawyer who is right for you.
Not only do you need to consider their professional expertise but the personality match needs to be right as well.
When determining which lawyer is right for you, during the initial meeting consider the lawyer’s style, personality, their overview of your case and the way the lawyer treats you. Sometimes it may be necessary to interview several lawyers before you get a sense of who best suits your needs.

The rest of your life begins here, so it is important to be very sure about who is the best fit for you.

Negotiate or litigate
There are a number of different approaches to resolving family law disputes whether they involve property, children or spousal maintenance. These include:

• Negotiation
• Counselling
• Mediation
• Family dispute resolution (FDR)
• Collaborative process
• Litigation

During your initial meeting with your lawyer discuss the different approaches available. Ask the lawyer what their views on litigation versus these alternative methods are? If you don’t want to battle it out in court you need to ascertain what view the lawyer takes.
Also ask the lawyer what issues in your case could be difficult? (Complicated issues pertaining to business evaluations, searching for sources of income, arrangements for your children, and abuse are just some of the factors that could make a case more difficult to handle);

Living separately under the same roof
Living separately under the same roof means that you start to live separate lives from each other, but both continue to live in the marital home. As the cost of rent and other living expenses continue to rise this is becoming more common, but will usually only work if you and your former partner continue to have a good relationship with each other, even though you have acknowledged that the relationship is over. If tensions exist, however, continuing such an arrangement would prove difficult and if you have children they will undoubtedly suffer if there is conflict in the household.

As far as the Court is concerned it is not sufficient to say that you sleep in separate bedrooms. There needs to be a complete breakdown in all the usual things that couples do for each other. There also needs to be a comparison done of your lives both before and after the alleged date of the separation, to prove that a separation has in fact occurred.
The things the Court will consider in deciding whether you are separated under the one roof are whether you:

• Have ceased sexual activity
• Live in separate rooms
• Operate separate bank accounts
• Do not share meals
• Do not provide household services
• Do not share entertainment inside or outside the home
• Do not represent to relatives, neighbours or friends that the marriage is continuing

If both parties contend that they have separated even though they still live under the one roof they will have to give the Court evidence of this. In some cases where there is a dispute as to the date of separation, your family and friends might also be required to give evidence comparing the pre and post separation situations.

Children
The ending of a marriage has added complications when you have children. One of the most difficult challenges facing parents at the time of separation is deciding how they will divide responsibility for and time with their children. Parents sometimes fear that the loss of their adult relationship will also adversely impact their parent-child relationship. They are also concerned about the potential negative impact of their separation on their children’s healthy development.

When and how children are told about their parent’s separation and the way parents handle a family breakup has an enormous impact on the way children cope with their lives. It is important to consider telling your children with your former partner. If this is difficult you may find it beneficial to seek counselling, mediation or family dispute resolution for help in this regard.
The process of separation will be as painful for your children as it is for you and your former partner as they lose the continuum of the relationship between the two people they love the most in the world. For children, the process of experiencing their parents’ separation, of learning to alternate between households, and of potentially moving schools or neighbourhoods can be very challenging.

The degree of parental conflict is the major risk factor associated with children’s adjustment to separation and divorce, and the association between intense marital conflict and children’s poor adjustment has been repeatedly proven.
Take as much if not more interest in your children’s lives at this difficult time and foster a parent/child relationship between your children and their other parent.

Always be courteous to your former partner, avoid arguing or making offensive remarks in the presence of, or within earshot of your children and do not involve them in any conflicts. If parents involve their children in any of their animosity or encourage them to take sides, the children suffer.

How you manage your separation process in the short and long term and how you behave with your former partner can be an example to your children of how to cope with conflict, pain, and expressing negative emotion.
Children are very aware if their parents are in dispute, particularly when it involves them. Children want their parents to agree on arrangements that involve them and want their parents to be mutually supporting parents.
Although separation and divorce signifies that the marriage is over, it doesn’t signify that the family has completely broken apart. Even though the two parents may not be husband and wife, they will continue to be Mum and Dad to their children. Even though the responsibilities of being married are released, there are still the responsibilities of being parents that need to be accounted for.
Co-parenting is the most important aspect after separation and divorce. Both parents must try to gain a sense of stability so that their children can thrive. It is important to remember that although a relationship may be ending, the family’s responsibilities are not.
Remember – put your children’s needs first. Providing that the children are safe, they have both a need and a right to have a relationship with both parents.

Family law principles in relation to children
Children are the full responsibility of both parents until they reach 18 years of age, unless a court orders otherwise. After you separate, this does not change in any way, for example, if you decide to remarry.
The Family Law Act 1975 sets out a number of important principles in relation to children:

• The children have the right to know and be cared for by both their parents
• That children have a right to spend time, and communicate on a regular basis with both their parents and other people who are significant to them
• That parents jointly share duties and responsibilities regarding their children
• That parents should agree about the future parenting of their children
• That children have a right to enjoy their culture
• That where the court is asked to make decisions about children, it must regard the best interests of the child as being the paramount consideration. Section 60CC(2) provides that a child’s right to protection from physical and psychological harm now takes priority over their right to a relationship with both parents.

The Family Law Act encourages separating parents to agree on parenting arrangements without going to court. Parents can usually work out which arrangement will suit their children better than a court can, and a solution reached by agreement is likely to work better for everyone than one imposed by a court. Court proceedings in relation to children should be regarded as being the last resort.

If you can both agree on the arrangements you wish to make for your children after you separate, it will cost you less in time, money and emotional distress, and be easier on your children.

Where there is an agreement, the following options are available to you:

• To avoid the formality of a court order, you can arrange for an informal agreement for your children’s living arrangement. Far more flexible than a court order, it doesn’t have to be in writing.
• You can prepare a written ‘parenting plan’ for your children’s arrangements.
• Your agreement or parenting plan can be made into consent orders by filing it with the Court.

You can also combine the certainty of consent orders with the flexibility of parenting plans to cover different aspects of the arrangements.

Property settlement
After separation, decisions need to be made about how the asset pool will be divided. This is known as a ‘property settlement’.
The asset pool includes all property such as houses, cars, shares, superannuation, liabilities, (mortgages, credit cards), financial resources, trusts and superannuation.
The first step in arriving at settlement involves identifying all of the parties’ property – no matter how or when it was acquired or in whose name it is in. The property is then valued. Often this step is quite simple but where businesses or complex financial structures are involved, it can become complicated and often requires the help of experts.

The contributions made by each party towards the assets are also assessed. These include:

• Financial contributions
• Contributions as a parent
• Contributions as a homemaker

Each situation is unique in determining the contributions by each party.
Factors that are considered in the division of the asset pool are:

• The age and health of each party
• The physical and mental capacity of each party to obtain employment
• Income, property and financial resources of each party
• Whether either party has the care of a child under the age of 18 years
• Any child support that has been paid by a party
• A standard of living that is reasonable in all the circumstances
• Any child support that a party may be liable to pay
• The necessary commitments of each party that enable them to support themselves, a child or another person that the party has a duty to maintain
• The earning capacity of each party

In determining the division of property consideration is given to the above factors and an adjustment of property may be given in favour of one of the parties to offset any imbalance. Consideration is given to the effect of any adjustment and what is fair and equitable in the circumstances.

Settling a property dispute
At all times it is important to keep in perspective the fact that your property settlement is a commercial matter and is most likely one of the biggest financial decisions you will ever need to make. It is important that you remain focused on the commercial aspects at this time. If you are finding it emotionally difficult as a result of the breakdown of your relationship, consider seeking the support from a counselling professional. By remaining focused on the commercial aspects you will be in a stronger position to make sound rational decisions.

There are three ways in which a family law property dispute can be resolved. These are:

• The parties use methods of negotiation. When an agreement is reached the parties enter into and execute consent orders which are filed and approved by the Court
• The parties use methods of negotiation. When an agreement is reached the parties enter into and execute a Binding Financial Agreement
• Litigation – the matter proceeds to a hearing before a Judge or Federal Magistrate.

It is extremely important to note that the above three ways are the only ways in which a property settlement can be finalised in a legally binding manner.
Unless you have a property settlement order made by the Court, a consent order or a Binding Financial Agreement, then the issue of property settlement between you and your partner may be “still alive” and either of you can still instigate court proceedings.
It is also important to note that once twelve months has passed since your divorce has become absolute, property and spousal maintenance proceedings can only be commenced with leave of the Court, which is often difficult to obtain unless hardship for you or the children can be established and a reason for the delay is given.

Divorce
Divorce is only the physical ending of a marriage and occurs when one party applies to the Court for what is called a certificate of divorce. It does not determine issues of children, maintenance and financial settlements.
Under the Family Law Act 1975, the irretrievable breakdown of marriage is the only basis on which a divorce is granted. These grounds are established by the husband and wife having lived apart for 12 months or more, and there being no reasonable likelihood of reconciliation.

It may take about 2-3 months from the time you file your application for it to be heard by the court. The hearing itself lasts only a few minutes and is usually heard by a Federal Court Magistrate. Successful applicants for a divorce under Family Law in Australia are initially granted a decree nisi. The order becomes final (decree absolute) in one month and one day from the date the divorce order (the decree nisi) is granted.

If you and your former partner have a child or children under the age of 18 years, your application for divorce must include information about the arrangements for their care, welfare and development. If you are the applicant and you have children under 18, either you and/or your lawyer must attend the court hearing. The Court will not grant a divorce unless proper arrangements have been made for the children’s care and welfare and those arrangements have to be explained to the Court.
If there are no children of either your former partner or you under 18, then it is not necessary for you to go to court. The divorce application gives you the option of not attending.

If you have been married for less than two years, counselling is required before the Court will grant a divorce.
It is advisable to obtain a divorce rather than remain separated for an indefinite period due to the legal consequences that flow from being married. Besides the fact that you cannot remarry without first obtaining a divorce, staying married affects your rights and obligations in relation to financial matters.
It is important to note that once the divorce order becomes final, a property and/or spousal application must be made to the Court within 12 months. You can apply for leave from the Court to make an out of time settlement after this period if hardship for you or the children can be established and a reason for the delay is given.
The granting of a divorce does not affect your responsibilities and obligations for children or affect your property and financial entitlement. The majority of people deal with parenting, property and financial issues first and leave the divorce until the end of the process.

Financial information
Know where you and your partner have bank accounts, life insurance policies, share certificates, all other instruments of finance — and important documents such as marriage certificate, passports, your birth certificate and those of your children.
Obtain statements and balances for bank accounts, plus copies of Wills and trusts. Print information stored on the computer or copy it onto a USB device.
The more information you have, the better.
Get up to date on the money you have and the decisions that have already been taken.
Keep copies of financial documents in a safe place such as a safety deposit box or with a close relative or trusted friend.

Bank and Loan Accounts
If there are joint bank accounts/loans/mortgages, consider changing the account withdrawal procedures so that you both have to sign as joint signatories to withdraw any funds. You might also consider limiting or cancelling any redraw facility.
If there are accounts (credit or debit) in your name that your former partner has access to (i.e. as a supplementary card holder), you may need to consider contacting your bank to limit/cancel any access by your former partner to that account.

Paying the mortgage
Keep in mind, if your name is on the mortgage, it is important to keep mortgage repayments up to date. If they are not this could have an adverse effect on your credit rating.

In negotiations and also in court determinations consideration is given to the capacity of each party to pay the mortgage.
In some circumstances the capacity to pay the mortgage may become difficult once one of the parties has moved out of the marital home. If neither party can make the mortgage repayments due to their financial circumstances it may be necessary for the marital home to be sold. The proceeds from the sale can be placed in a trust account held by either party’s lawyer or if property proceeds are likely to be held for an extended period, they are generally placed into an interest earning controlled monies account until a financial settlement is reached.

Alternatively you may agree to distribute the proceeds. This will be characterised as a partial property settlement and will still be included when the division of marital property is calculated. It is essential to seek legal advice and formalise the distribution of such proceeds by way of consent orders.
It is in your best interests to consult with your lawyer if there are any issues with regards to mortgage repayments.
When you separate you must carefully consider the arrangements that are in place. Either way, whatever you decide is a risk and the expert advice of your lawyer on this matter will be highly beneficial.

Outstanding bills and obligations
Even though you are in the process of separation and divorce, the creditors to whom you and your former partner are indebted, still have a right of recourse against you both. Additionally, if you and your former partner are jointly obligated on an account, slow payment or non-payment can adversely affect your credit rating. Not only that, but you also can be sued by creditors in certain circumstances. Therefore it is important to keep careful track of your outstanding bills and obligations.

Consider whose name the utilities are under
It is important to be clear about whose name all the utilities are held in. If it is not you and you remain living in the marital home, contact each utility company and have each account transferred into your name. This will help prevent an angry former partner from cancelling the services on you.

If these accounts are in your name and you no longer live in the marital home, give notice in writing to your former partner that you will be removing yourself from these accounts by a set date and that they need to contact the relevant utility companies to have the accounts transferred into their name. You might have reasonable expectations that your former partner will pay for these expenses for the property they are living in, but if they do not pay then this could affect your credit rating.
If utilities are in both your names, the above approach should also be adopted.

Your Will and insurance policies
One of the first priorities immediately upon separation is to update or prepare your Will and revoke any Power of Attorney your former partner may have. Any existing Will is likely to list your former partner as a beneficiary and possibly also give them control as an executor. Even if you are divorced your former partner can make a claim if they were dependant on you. Therefore it is essential to update your Will.
Make sure you give a copy of your updated Will to a close relative or trusted friend.
Get detailed information on every insurance policy you own, jointly or individually. Get the name and phone number of your insurance broker. If the beneficiary of your life insurance is your former partner you will need to update your nomination.

Your superannuation
Getting superannuation sorted after your relationship ends is an important step in planning for your future. Super is treated as a type of property in your financial settlement and can be divided by agreement or by court order.
If your former partner is the beneficiary of your super fund, this will need to be updated. In addition to the superannuation entitlement there may also be life insurance benefits that need attention.

Private health insurance and Medicare
Contact your nearest Medicare office and advise them of your changed family circumstances and request your own card, as this can contribute to protecting your privacy in relation to any medical treatments you may need. If you have children under the age of 18 your children can appear both on your card as well as your former partner’s.
It is important that you make sure you have health insurance in place. Consider who the primary holder of your private health insurance policy is. If it is not you, then potentially your former partner could remove you from that policy without notice to you. Not only could that lead to obvious problems of not having essential private health insurance, but it could then result in you receiving a loading on any future health insurance you take out as a result of the government’s incentive scheme for remaining covered by health insurance.

Contact your private health care fund, (1) to ensure you are still covered, and (2) to inform them of the situation and put in a formal request that you wish to be notified of any future changes to the policy.
It is important to note however, the health insurer may not consider family cover continues to cover a separated spouse who is not the primary holder of the insurance.

Private and confidential mail
It is important to protect your privacy, particularly when it comes to correspondence in relation to your divorce. There will be sensitive information being sent to you from your lawyer and possibly other divorce experts that should be for your eyes only.
Have your mail re-directed to either a close family member or trusted friend. If necessary rent a post office box. This is recommended regardless of whether your former partner and you remain living together or not. That way if there are any problems with your former partner they will not have access to your mail.
Set up a new e-mail address. Change the password on any computer you use that has sensitive information relating to your matters saved on it.

Keep everything in writing
It is essential to keep all correspondence and notes in relation to your divorce particularly if you have children. That includes all e-mails — no matter how trivial you think the subject is.
Make sure any requests and agreements between yourself and your former partner are in writing so they can be referred to if needed at some point in the future. E-mailing is fine; just make sure you keep saved copies. In circumstances where you and your former partner agree on certain matters verbally, ensure that you follow up what was agreed in writing.
By retaining a written record, there can be no dispute as to what has been agreed between you both. Even after your matter is finalised, follow this rule when communicating with your former partner and you will not be caught out.

Be careful when using electronic media
In this age of electronic media be cautious of any information or comments you post on Facebook, Twitter, text messages and e-mails. Once these comments are floating in cyber-space they may fall into the wrong hands.
Electronic communications are best used for passing on information. Be factual, not emotional. It is essential not to vent, make critical remarks or complain as these can be altered, kept, reviewed, printed and forwarded to other people. Be mindful that such communications are more permanent than verbal discussions.
Do not write e-mails, texts or post any comments on Facebook or Twitter when you are upset, angry or have consumed mood altering substances. It is prudent to save any messages before sending them, leaving them for a few hours or perhaps sleep on what you have written and then reread before sending the message.
If your matter was to go to trial these comments could potentially be used as evidence against you.

If you receive hostile electronic communications you do not have to reply with the same emotional approach, or use the same medium. If you wish to respond remember, to stick with the facts.

Child support payments
Parents have a primary duty to provide financial support for their children until they reach the age of 18 years. How much should be paid depends on the financial circumstances of each parent, the level of care each parent provides for the children, the ages of the children and whether either parent supports other biological children.
The Department of Human Services works out the amount of the child support by using a formula based on:

• The cost of caring for children (based on Australian research)
• The income of both parents
• Who cares for the child/children
• Whether the parents have any other dependent children living with them
• Whether the parents have any other children for whom they must pay child support

A ‘Costs of Children’ table has been created using Australian research, which also adjusts for the number and ages of the children.
The costs of the children are shared by both parents. The CSA works out these costs by combining both parents income with a ‘self-support’ amount deducted from their income before the calculations are made. The self-support amount for 2012 is $21,622.
The parent with the higher income is responsible for providing the greater share of the children’s costs. (If you have other children of your own living with you it is important to let the CSA know as your income used to calculate your child support responsibilities may be reduced and you may pay less child support).
The amount of care each parent provides for the children is also taken into account and can be recognised as meeting some or all of the costs of the children.

Spousal maintenance
The definition of spousal maintenance is money paid by one spouse to another for their financial support following separation and/or divorce. It does not include payments for dependent children.
Spousal maintenance can be paid by agreement between the spouses or by order of the Court.
Generally the Family Court expects both parties to make reasonable efforts to get paid work if they can. However, the Family Court accepts the need for a party to care for children, especially those not yet at school and often allows a spouse who has not been in employment to receive spousal maintenance while they find work or re-train.
Maintenance is not automatic. In deciding a maintenance application, a court considers the needs of an applicant and the respondent’s capacity to pay.

Normally spousal maintenance claims are dealt with at the time of property settlement. A party can however make a spousal maintenance application on an urgent, interim or final basis separately from a property settlement application.

Notify organisations interested in separation
Consider notifying the following organisations of your separation: schools, sporting clubs, banks, places of employment, real estate agent’s, council and utilities providers and service providers.

Look after your health care needs
Make appointments for medical check-ups, have dental work done and have your glasses updated. You don’t want to run into any new physical problems while you’re in the throes of separating.
If you are having difficulty coping avoid self-medicating with tobacco, alcohol or other drugs. Seek help from a counselling professional or doctor.

Consider counselling for both yourself and your children
Although all children may react with feelings of anger, resentment, anxiety and mild depression for a couple of days, you should seek professional help if your child exhibits the following symptoms for over a few months:

• Sleep problems
• Poor concentration
• Self-injury
• Poor school performance
• Withdrawal and avoidance of enjoyable activities

Often it is a good idea for your children to have someone impartial they can express their feelings to without fear of judgement or criticism, even if they do not exhibit signs of distress.
With regard to yourself, it is often very helpful to seek the guidance of a counselling professional to help you with your emotional needs. A counselling professional will provide you with support and constructive ways to manage and deal with the many difficult emotions you experience.

Keep communication lines open with your former partner
Going through separation and divorce is a traumatic experience and emotions tend to get heated — leading to a breakdown in communication. Often separating couples rely on old communication habits to try and resolve important issues arising from the separation — the same habits that probably contributed to the breakdown of the relationship.
It’s definitely not easy communicating with your former partner under these circumstances and at times it will take supreme effort, but consider it is a benefit you are providing to your children.

This is often a time of enormous frustration as both of you remain co-dependent on each other in various degrees as you each require different things from each other. Neither of you can move on entirely independently of each other until settlement is reached.
Remain calm during all discussions with your former partner and aim to be amicable and civil wherever possible.
If communication does get heated, do not continue. There will not be a successful outcome whilst emotions run high and to continue in this vain is pointless. Walk away or hang up the phone if necessary. This will also protect you from any domestic violence or your partner bringing a domestic violence order against you.
Keeping communication civilised can help you both to deal with the big issues about children and property more easily and contribute towards your matter being finalised sooner.

Support and guidance is essential
Overwhelming emotions can reduce your capacity to think clearly and impair your judgment. Trying to make rational decisions can be difficult or sometimes near impossible. It is hard to know which way to turn or what actions need to be taken to protect your emotional and financial well-being.
Do not feel you need to go through this alone. Family and friends are an invaluable source of support at this time. However, it is important to keep in mind that every divorce has its own unique set of circumstances and difficulties. You will often hear well meaning, yet conflicting advice from those close to you as to what you are supposed to do and how you are supposed to proceed, or be told what they believe you want to hear rather than what you really need to hear. All this adding to the confusion you are already feeling.
It is essential to receive direction, support and guidance from a team of professionals who can remain impartial, who take a no nonsense approach working alongside you as you deal with the many aspects of this major life adjustment, yet at the same time have empathy for your situation and have complete understanding as to what you are going through.

(Extract from “The Divorce Navigator: A Practical Guide to Divorce”) RICHELLE HAMPTON

For further details contact:
Richelle Hampton
info@divorcenavigation.com.au