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TAS Including Ex's Maori Land Shares as Assets in Property Settlement?

Discussion in 'Family Law Forum' started by WHMurphy, 7 September 2016.

  1. WHMurphy

    WHMurphy Well-Known Member

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    Hi Everyone,

    Here's a brief summary of my situation.

    My ex and I declared our intention to divorce in March of 2015. Over the next month she empties our joint bank accounts to the tune of tens of thousands of dollars. We had been living as separated but living under one roof for some time before that. We attempted a negotiated settlement through Relationships Australia, but after two meetings (and initially stating she had no idea where all the money form our joint accounts had gone), she stormed out declaring she wanted more than a 50% split in property settlement and also wanted a lawyer. She believes that I have book royalties hidden away in secret accounts (I wish).

    I wanted to sell the family home last year. She gave her approval, with the condition that she have first option to buy me out. I paid $500 to have it listed. A week later I receive a letter from her lawyer stating that she no longer wants to sell and wants to see if she can buy me out.

    Eight months later, she finally works out that she can't afford to buy me out. She sacks her lawyer and says she now wants to try and come to a settlement through Relationships Australia again. I make an appointment. I also find a buyer at a price just over the professionally valued price. After frustrating the real estate agent and conveyancer to the point where they refused to have anything more to do with her, she counters the buyer's offer with a price considerably over the valued price and on terms which would be unacceptable to any buyer of our type of property. The buyer walks. He has been the only person to make an offer anywhere near the valued price in the last 12 months.

    She no longer wants to settle through Relationships Australia and has found another lawyer.

    Now, to my questions.

    1) I've just started filling in the Financial Statement Kit in preparation for a court order to sell the family home. I am including all my personal assets, including bank account balances, as of the time I am filling it out. When it comes to settlement, at what time after separation are earnings consider my own and not subject to division.

    Is it at the point of out intention to get divorced in March 2015, or as of the time I fill out the Financial Statement Kit? I've been working on the assumption that it was March 2015 and everything we have both earned since then is not subject to division during settlement.

    2) My ex has shares in over 30 separate Maori trust plots of land in New Zealand, including an enormous island and productive agricultural land. Her share of each property is only small, but overall they add up to quite a bit. She has denied having any overseas assets to her previous lawyer. Her share of these properties are easily found online for anyone to see.

    As these shares can be sold, according to N.Z. law, my lawyer is of the opinion that they are an asset that will be considered in our financial settlement. Is this the case? I would imagine the costs associated with having her share in these properties valued would be enormous. How might these assets affect the settlement and is it worth pursuing?

    I initially had no interest in this land until her lawyer said that she wanted me to pay half of a sizable student debt she incurred during two years she recently took off work to upgrade her qualifications at university (not contributing in any way to the family during this time and clocking up tens of thousands of dollars in credit debt to support her lifestyle, of which I have already paid half).

    Thanks,
     
  2. AllForHer

    AllForHer Well-Known Member

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    1. Unfortunately, the shared asset pool is considered from the time of settlement, rather than the time of separation, which means earnings since separation will be included in the shared asset pool. Not ideal, but hopefully not likely to make or break your situation. For the record, you might be able to have the missing funds added back into the shared asset pool.

    2. I'm inclined to agree with your lawyer in that I, too, would think the trusts are assets to be considered a part of the shared asset pool. It will affect the settlement by increasing the value of the shared asset pool to be divided, and since you're both obligated under law to provide full disclosure of all assets in a property settlement, it would be unwise for her to skimp on this in the hopes it will be ignored (especially if you can provide evidence of her share in them).

    Regarding the student debt, the Court can consider it in one of two ways - either a joint liability or a personal liability, dependent on the circumstances around the debt itself. In some cases, particularly those where the HECS debt has benefited the family directly (e.g. the person who incurred the debt ended up with gainful employment related to the degree which consequently resulted in significant financial support for the family unit), it'll be considered a joint liability, but in other cases, such as where joint funds have already contributed significantly to a degree that resulted in little gainful input to the family unit at the end, then it's more likely to be considered a personal liability.

    I assume you understand how the Court determines property settlements?
     
  3. WHMurphy

    WHMurphy Well-Known Member

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    Thanks AllForHer,

    That's cleared up a few things for me. If the shared asset pool is determined from the time of settlement, then it is possible that my ex has spent her half of the money from an investment property sale last year and raked up new credit card debts that I will now have to pay half of. There is apparently no incentive for me to earn a lot before settlement, if she is still entitled to half.

    Your point about the HECS debt is a good one; I can demonstrate that her studies did not result in a significant contribution to the family unit.

    As for understanding how the Court determines property settlement, I'm sure I know considerably less than I need too.

    Thanks again.
     

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