QLD Fair and simple property settlement

[Jane101]

Hello,

I have just applied for divorce after a 10 year marriage. We built our home 8 years ago (it is in my ex's name) and I would like to begin property settlement. We are quite amicable, so we would both like the easiest way to do this. My questions are:

When splitting the property, is asking for half of the equity fair? He wishes to keep the house. We have paid quite a large amount off, and it has increased in value a fair bit.

Should we get lawyers involved? Or can this be sorted through mediation and consent orders?

Do we get the house valued by a bank or real estate agency to come up with a figure? How do I find out how much is left on the mortgage? I never had access to finances in his name. What is stopping him from moving money off the mortgage and saying there is more owing?

Thanks in advance.

 

[Time101]

Hi Jane.

Are there any kids involved that are under age. If so you'll be entitled to more than half.

Also you can claim half of his super.

As for mediation ... it was useless for me.
Consent orders, I would go through a lawyer.

As for what's left on the mortgage .. ask him to give you recent documents on what's left over. (If he has nothing to hide then he shouldn't have a problem with showing you the balance of the mortgage). Would be interesting to see if he reacts.

He might not be telling you the truth and could be hiding assets and finances.. I'm not saying he is but it does happen very often.

As you said above that you had no access to his finances he has in his name. how can you be sure that their isn't some other amount in several banks or even overseas.

He might be amicable which is great .. but think for a minute he might just want the quickest way out.. and by giving you half works great For him.

He can do whatever with the mortgage as his is the sole person on it. Ask for some bank statements, read through the ins and outs in $$$ wise. See if it matches .. if not ask him

I would get 3 appraisals from local agents in your area. I find that banks always value it lower.

Good luck
Please keep me posted.

Ps. Sorry if my reply sounds blunt.

 

[Rod]

Appraisals give a guide, proper valuation is more precise and accepted by courts.

Doing things by consent is OK but you'll still need to obtain independent legal advice if you want consent orders.

Else you can DIY the whole thing and forget about court.

Keep in mind that if you do need the courts help you will only have 12 months from when divorce is granted to split the property using the courts.

 

[Clancy]

Usually an amicable property settlement requires both parties to be willing to be more generous than what they think is fair.... if you both approach with that attitude, it should be much easier.

However, a property settlement will never be 100% legal proof unless it is approved by the court with property consent orders. The court will do a basic 'fairness test' and then assuming its not vastly unfair, they will approve it. You wont need to go to court to do this, you just need to put in an application and you have to each have a lawyer sign off on it.

 

[Jane101]

Thank you all for the replies. I will speak with a lawyer about a consent order and see how we go. Hopefully it does stay amicable and out of court.

 

[AllForHer]

Hi Jane.

Are there any kids involved that are under age. If so you'll be entitled to more than half.

Also you can claim half of his super.

As for mediation ... it was useless for me.
Consent orders, I would go through a lawyer.

As for what's left on the mortgage .. ask him to give you recent documents on what's left over. (If he has nothing to hide then he shouldn't have a problem with showing you the balance of the mortgage). Would be interesting to see if he reacts.

He might not be telling you the truth and could be hiding assets and finances.. I'm not saying he is but it does happen very often.

As you said above that you had no access to his finances he has in his name. how can you be sure that their isn't some other amount in several banks or even overseas.

He might be amicable which is great .. but think for a minute he might just want the quickest way out.. and by giving you half works great For him.

He can do whatever with the mortgage as his is the sole person on it. Ask for some bank statements, read through the ins and outs in $$$ wise. See if it matches .. if not ask him

I would get 3 appraisals from local agents in your area. I find that banks always value it lower.

Good luck
Please keep me posted.

Ps. Sorry if my reply sounds blunt.

Blunt, sure, but also wildly speculative, suspicious and inaccurate.

1. Nobody is 'entitled' to anything except the right to apply for a property settlement.
2. Only the superannuation earned during the relationship is taken into account, not the full balance, and it's still subject to super laws, namely that any successful claim to super will be executed as a transfer, not a cash payment.
3. Having kids does not entitle a party to more than half by default.

I feel that entire post comes from a place of poor personal experience, frankly, and should be perhaps taken with a grain of salt.

OP, you asked if asking for half of the equity is fair, but realistically, nobody here can really answer that. A property settlement can be whatever you and your ex agree to, but it might help to understand how the Court decides property matters when asked to do so after a couple can't reach agreement.

Basically, the Court asks for questions:

1. What's the value of the shared asset pool?
2. What were 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?

As a guide in negotiations outside of Court, start at 50/50 split and work backwards by making concessions as you work through the questions above.

But get legal advice. It's not only going to give you a better idea of what to expect, but it's also mandatory for all property settlements, including those made by agreement.

 

[sammy01]

My 2 cents... Keep it amicable... Better to get 45% of the assets and walk away with only a small legal bill So $100 000 and a $5000 legal bill is better than $90 000 and a $10 000 legal bill.

I'd go one further. Losing a little bit on assets to save the stress of court / solicitors / years of pain... is a better result even if the court stuff would have gotten you more money

 

[Time101]

All for her... response to my comment going on by experience in family court of wa. What mates have received recently.
Even some that have been amicable even split super and property settlement 50/50 fair no kids under 18 tho.


Jane ....
Sounds as though you both can be amicable about it all. If so then avoid court...

But make sure you get a % out of it. 50/50 is fair if there are no underage kids.

I've seen some that start out being amicable then turn out to be a nasty piece of work.

Your first post asked about him moving money ... and yes he can Do that ... he was in control of all finances.

Please don't get blind sighted by him.
He might not be telling you the truth. No saying he isn't just could be a possibility to make u go away with what he wants to give to you.

Might be a good idea just to get some legal advice.
Hope all goes well
Plessee keep us posted.

 

[Time101]

All for her... response to my comment going on by experience in family court of wa. What mates have received recently.
Even some that have been amicable even split super and property settlement 50/50 fair no kids under 18 tho.


Jane ....
Sounds as though you both can be amicable about it all. If so then avoid court...

But make sure you get a % out of it. 50/50 is fair if there are no underage kids.

I've seen some that start out being amicable then turn out to be a nasty piece of work.

Your first post asked about him moving money ... and yes he can Do that ... he was in control of all finances.

Please don't get blind sighted by him.
He might not be telling you the truth. No saying he isn't just could be a possibility to make u go away with what he wants to give to you.

Might be a good idea just to get some legal advice.
Hope all goes well
Plessee keep us posted.

 

[Jane101]

All for her... response to my comment going on by experience in family court of wa. What mates have received recently.
Even some that have been amicable even split super and property settlement 50/50 fair no kids under 18 tho.


Jane ....
Sounds as though you both can be amicable about it all. If so then avoid court...

But make sure you get a % out of it. 50/50 is fair if there are no underage kids.

I've seen some that start out being amicable then turn out to be a nasty piece of work.

Your first post asked about him moving money ... and yes he can Do that ... he was in control of all finances.

Please don't get blind sighted by him.
He might not be telling you the truth. No saying he isn't just could be a possibility to make u go away with what he wants to give to you.

Might be a good idea just to get some legal advice.
Hope all goes well
Plessee keep us posted.

You were right - he offered me $30k to leave the house alone. It's worth $550k. Lawyer is booked.