QLD Divorce and Property Settlement of Pre-marital Properties?

Discussion in 'Family Law Forum' started by Razzy, 19 April 2018.

  1. Razzy

    Razzy Active Member

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    Hi,

    I have a pretty specific question.

    My wife and I were married 16 years ago, have 2 children (14 and 15) and are looking to seperate and divorce. We both will want joint custody of children, which is fine.

    When we got married, we both had property (with mortgages). She had a unit which she sold after the marriage and I had 2 houses which I sold after the marriage. All of the proceeds went towards ensuring we did not have a mortgage...

    Her contribution as about 100,000 and mine 380,000 We have bought and sold a few times and now have a house with a mortgage.

    My question is, does the pre-marital house value get treated in the same way as if we had kept the properties instead of selling them ?

    I believe that if we had kept those properties, and simply had a mortgage on our home, upon divorce, we would be entitled to keep those assets... Basically removing them before the value of our post marriage pool is divided (50:50), however is that principle no longer valid if the assets are sold and invested into reducing the home mortgage ?

    This worries me quite a bit as I worked hard for those properties, and it seems unjust to treat them differently just because the became liquid and were used in a financially wise manner.

    Thanks
     
  2. sammy01

    sammy01 Well-Known Member

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    The assets would be treated the same regardless of what you might have done with them.

    So the real issue is the 16 years. Initial contributions become less significant. If the marriage / relationship was 2 yrs, it would be treated differently than a 16-year relationship.

    You can argue for a 10/15% cut in your favour but in court you'd struggle to have that recognised and accepted
     
  3. Rod

    Rod Well-Known Member
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    There is no point worrying about the end result which is going to depend on the subjective opinion of the judge.

    All you can do is make your argument firstly to your wife, and if she doesn't agree, then to a judge.

    Everyone has a different opinion on what is 'fair', so while we might say an extra $280,000 to you is fair, we don't know what your wife may have given up to support your career and be homemaker to your children.

    If it goes to court your pre-marital assets will be considered but other factors may diminish or remove any difference. Individual circumstances are what will determine the result, not some fixed formula. Read AllForHer posts, she gives a good explanation.
     
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  4. Razzy

    Razzy Active Member

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    Fair enough... I get it. We both built upon what we started with and we both deserve 50% of everything we built upon, including the house and super....

    Indeed, my wife is now working almost full time (in the same profession as myself) and certainly has the capacity, skills and ability to make as much or more than myself... us splitting gives her the option to work more as we both agree joint custody of the kids is important for them and us....

    Lets see how things turn out... I do really hope things work out what we both consider fair... I am in no rush so am happy to take our time and do this fair and slowly... emotions aside on the split, I think we are both good people who don't want be to emotionally or financially damaged from our split.

    Cheers
     
  5. SamanthaJay

    SamanthaJay Well-Known Member

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    Keep up the great attitude!
     
  6. Razzy

    Razzy Active Member

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    My wife and I sat down and talked about what was fair for financial split 3 times (I put it in a diary).. we agreed that any assets we had prior to the marriage we should take out of the pool... including super and property proceeds... She then acted on that to remove her items from the house when she moved out recently. We both found our super amounts pre marriage and the buy/sell prices of our properties prior to marriage.. so as far as I am concerned, we had agreed what was fair.

    However... My wife has just seen her lawyer, and they have advised that the court would not allow us to negotiate with anything other than a 50:50 split of all the assets, including the pre marriage ones that I started saving for 18 years prior to our marriage. She claims that even if we agreed to it, the court would automatically rule it out because of our 16 year marriage.

    Is that correct ? Will the court simply over rule any agreement that does not give her 50:50 because the relationship is 16 years ?

    If so, my super (which I started saving 18 years before we met) is going to be half hers, as is my property, despite it costing us nothing as it was positively geared.

    (She had super and property saved also, just a lot less).

    I am waiting for the letter from her lawyer to take to mine (which I still have not booked but really should asap).

    I could understand if we were married when we were 20 and had little time to build wealth though hard work beforehand, but we were not young ... I was 38 and she was 34.

    My question to the group is.. are there any other factors that can sway such a 50:50 split for per-marital assets ?

    We were not particularly young when we got married (I was 38, she was 34). I am in worse physical state than her (chronic migraines, back deterioration and other health issues) so her working life may be considered longer going forward... she is younger, fitter, goes hiking for days, and quite attractive or her age.

    She has moved on to another relationship (although they are holding back till the finance stuff clears I assume)... that is part of the reason for her rush... I don't think he will move in until we have sorted our finances, and he is in a similar situation with his wife.

    Her family support network is close by and strong, mine is a long distance and less so.

    I have asked a mate at Minter's if he knows someone... I really don't want to be eaten alive by lawyer fees, but I worry that this opening salvo claim of 50% of everything is not just a negotiating strategy, but a final demand of what they insist must be agreed to..

    Anyone know how long these things can take to settle ? I have heard it can be quick (months) if both parties agree... or long (years ?) if they don't... wondering how long the stages before having to go to court can take as I am in no rush and would happily take a year or more negotiating if it gets us closer to what I think is fair.

    She has someone else on the sidelines and I suspect the longer it takes, the less she will care about grabbing money that even she knows is unfair... (trying not to sound bitter in this post).

    Thanks again...
     
  7. Rod

    Rod Well-Known Member
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    Not true. Courts often do not give a 50/50 split. Unfortunately for you, your wife has chosen a lawyer who is telling your wife what she wants to hear.

    Your ill-health is a factor in your favour.

    I agree with this statement.

    If your wife has a lawyer scenting money and not caring about the best interest of their client, then you are now in for a long and potentially costly battle. I have noticed lawyers do not negotiate like 'normal' business people. It is like many have read the Stalinist approach to negotiating as part of their studies - no compromise. I have undertaken many business negotiations and it is totally different to what you are now likely to experience. It was interesting reading a document written in the 1950s and released by the CIA detailing how Russians approached negotiations in the cold war area, but I digress ...

    IMO, your best bet is to convince the ex she is going to lose more in legal fees fighting, than staying with what was originally agreed. If she is easily influenced by others and is potentially greedy, you will likely fail. If so, your option is to conserve your legal dollars for when it is really needed. Some initial advice to firm up your position, then you do most of the hard work yourself (you seem capable enough if you are writing these posts), and if it does go to court consider using a barrister in court for the final trial. The alternative is just agree to her revised position. I have heard of instances where this is seen as weakness by the other side and they adjust their position and begin demanding more and more as discussions proceed. Hard to pick beforehand which type you are dealing with.
     
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  8. AllForHer

    AllForHer Well-Known Member

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    So, the reason the Court is unlikely to accept the exclusion of assets preceding the marriage is because a) those assets would most definitely be considered marital property and b) their value would likely have changed over the course of your 16-year marriage to alter the property pool vastly.

    It wouldn’t be considered just and equitable.

    But the commentary about 50/50 split is not correct. I imagine that’s a manipulation of words based on legal advice that has told her the exclusion of assets preceding the marriage wouldn’t be considered just and equitable out of a 16-year marriage.
     
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  9. Razzy

    Razzy Active Member

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    Thanks.

    Mod / Administrator - I keep getting warnings about my posts...Any ideas why ?
     
  10. Razzy

    Razzy Active Member

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    Thanks. Long story short.

    Married late (34 yrs old) so Pre marriage of earning (18 years) gave us both time to save our own pre-marriage pool.

    Value of assets is somewhat fixed.. the properties were sold within 2 years of us getting married.. divorcing some 14 years later. Value of marriage pool has grown (obviously).

    Btw, the pre-marriage properties were positively geared...so cost her nothing during our marriage. Their sale made our married life easier thanks to having no mortgage.
     
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