NSW 50/50 Property Settlement with 50/50 Custody of Children - Possible?

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Cmacbstar

Active Member
25 April 2018
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Hi there,

My question to you is, can I expect a closer to 50/50 split of the asset pool and property settlement, with a 50/50 custody of children arrangement?

My wife has been the major earner and myself the main caregiver and I have made many improvements to our small 26-acre property ie, fencing sheds, granny flat and renovations, kitchen and bathroom. Initial contributions I made were around the 100k while her initial contributions was a deposit of around 25k on our first home and a car debt of roughly the same.

We have about 380000 equity in the marital home. Over the last 5 years, she has redrawn to the tune of 100k from our mortgage because I trusted her with my password to do the right thing and left the financials up to her, only finding out now I should not have. Should I just say goodbye to this money or could I fight it?
 

AllForHer

Well-Known Member
23 July 2014
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Is it possible? Sure, the legislation makes it possible.

Will you get it? No idea.

A property settlement can be whatever you and your ex agree to, but if you can’t agree and ask the Court to decide, it asks four questions:

1. What’s the value of the shared asset pool?
2. What are the financial and non-financial contributions of each party?
3. What are the future needs of each party?
4. Is the settlement just and equitable?

You have said your ex contributed more financially, but you were primary carer for the kids. The Court doesn’t consider the contribution of keeping house and raising kids any less important than breadwinning.

As for kids, same deal - a care arrangement for the kids can be whatever you agree to. Failing agreement, you can file for Court. The Court holds the children’s best interests as paramount, which generally meaning having a meaningful relationship with both parents.

The presumption is shared parental responsibility, and if that presumption is upheld (which it usually is), the Court must first consider if an equal care arrangement is suitable, and failing that, an arrangement for substantial and significant time with the non-resident parent. Substantial and significant time is a combination of weekdays, weekends, holidays and special occasions (an average of five nights a fortnight, plus half holidays and time at Christmas, Easter, etc.)

Hopefully, the Court won’t ever be involved though. Contact Legal Aid about organising mediation with your ex so you can try and negotiate without going to Court.
 
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Rod

Lawyer
LawTap Verified
27 May 2014
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I agree with AllForHer.

I don't like chances of escaping court as anyone who is prepared to effectively steal money from the relationship is not likely to play fair in a property split or parenting. If you are confident the marriage cannot be saved, prepare for the worst. Start planning now before undertaking action. Chances are if the marriage is rocky she is 6 months ahead of you in planning for a split. If your plans are different to hers she is likely going to fight. And remember that women's logic systems are often different to men's. Not being sexist here, just acknowledging reality.

Of course I could be wrong and she will be reasonable :) One can only hope ...
 
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Cmacbstar

Active Member
25 April 2018
7
0
31
Thank you for your reply. Is it possible to lock in the 50/50 custody before we settle our financials as I believe she will no doubt back out of custody arrangements if I push to hard for what I believe is fair and equitable?

My fair and equitable would be a 50/50 share of equity while she retains all on farm assets, horses saddlery furniture etc.

Thank you for any help. I am at a loss how to deal with it all at the moment. If I don't take the offer of 140k and the old furniture she doesn't want, I'm concerned it will end up in court and risk the court will not see the best interest of children to be 50/50 custody.
 

Rod

Lawyer
LawTap Verified
27 May 2014
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Yep tough situation. Probably best to talk with a lawyer to work out a strategy that may work.

A lot of the strategy is going to revolve around what your ex/wife is prepared to do. One advantage of doing both together is if she tries to bargain property off against children you can use that against her at court as not really interested in the kids. But may backfire if she starts digging in her heels over everything and plays smart.

You can initiate parenting orders ahead of doing a property split but if I was your ex/wife I'd be putting in for property to be heard at same time. May pay to hold off getting a divorce until parenting is organised giving you more time before needing to work on property division.

You are the one best placed to know how your ex/wife is going to respond. All you can do is try, and then respond with what comes your way.
 
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