NSW How Does Family Court Calculate Assets for Property Settlement?

[Peter Ando]

Hi guys,

I hope you can help me. I've been getting conflicting info from legal practitioners, friends and from that all too famous law firm "Google & Associates". How does the family court calculate the division of assets for property settlement? Is there a set formula, A+B-C/2= S where A = Spouse 1 assets, B= Spouse 2 assets C= liabilities S= Settlement.

Wouldn't that be easy!.

I won't go into earnings, gifts, hours worked, hours stayed at home. If I did this would be a 10-page post. During our marriage, that was all equal. But what isn't equal is when we cohabited in 2010. I brought equity of $600,000. That equity was $700,000 when my wife left in 2015.

My legal eagle has come up with a figure, and I have no idea how it was calculated. All I can find on Google is that the courts are fair and equitable. I think offering her 65% or $65,000 is fair? Will the courts see it that way?

I have had a lot of people tell me to skip mediation and take it all the way to court. A lot of guys say they found out later they lost a lot more through mediation and wish they had gone to court. But I wonder if they encourage me to do that, and pay all the legal fees involved to see "what if" they had done the same. Use me as a guinea pig.

Regards,

 

[Victoria S]

Hi Peter,

Without knowing all the circumstances, facts and figures that the court takes into account, it is impossible to determine what settlement they will deem fair and just. They will not only take into account the contributions (financial and non financial) of both the parties but they will consider the future needs of each of the parties as well.

Its difficult to understand how people would look back at their mediation experience and conclude they would have come out with more had they gone to court, since it is entirely up to the court to decide what is fair and just in those particular circumstances and if we were able to predict it then it would negate the whole exercise. I would listen to your lawyer, if they are an experienced family lawyer they will be able to give you a good estimate of what you should be negotiating for having regard to what the court takes into account. You may get more going to court but you will give it to your lawyer instead of your ex.

Check out these posts:
Property Settlement After Separation - Rarely a Case of 50:50 - Legal Blog - LawAnswers.com.au
Property Settlement After Separation - Agree Now, Don't Pay Later - Legal Blog - LawAnswers.com.au
Family Law Mediation - Have You Considered It? - Legal Blog - LawAnswers.com.au

 

[AllForHer]

There's no set formula for this. Every case is different, and every party can negotiate whatever settlement they want if both parties agree to it.

For information's sake, however, the way the Court deals with it is by asking four questions:

1. What's the total value of the shared asset pool?
2. What were the financial and non-financial contributions of each party? (E.g. One party worked while the other stayed home and raised the kids, etc.)
3. What are the future needs of each party? (E.g. One party has a disability and cannot work; one party has to care for the kids for the next 15 years; etc.)
4. Is the settlement just and equitable (This is for the Court to determine)

It's likely your lawyer has looked at all of the above questions and used their experience to determine a fair settlement for you.

Now, mediation vs Court.

Mediation is the cost-effective option and it ensures both you and your ex can divide the highest possible value on the shared asset pool while maintaining complete control over the outcome.

Court is the extremely expensive option, it can deplete the shared asset pool by an unknown figure upwards of $50,000+ (in some cases more than $350,000) due to lawyer fees and court costs, you might even be ordered to pay the other party's legal fees, and nobody can predict the outcome.

You might get more, you might get less, there is literally no way of knowing what the Judge will decide. All those men telling you they wish they'd gone to Court have absolutely no idea whether or not they would have been better off because there's no way of knowing.

So, it's worthwhile at least attempting mediation, in my opinion.