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NSW Property Settlement - When are Earnings & Superannuation Determined After Separation?

Discussion in 'Family Law Forum' started by Needinghelp, 18 December 2014.

  1. Needinghelp

    Needinghelp Active Member

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    In a property settlement are balances of personal accounts and superannuation determined at time of separation (post separation) or when the property settlement is legally finalised.

    If the latter would this mean that all earnings after agreeing to separate are still included in the asset pool even if 12 months later and one party has earned a lot more in both income and superannuation.

    This would incent the party with lower earnings to delay the formal settlement for as long as possible wouldn't it?
     
  2. AllForHer

    AllForHer Well-Known Member

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    I believe the value of the shared asset pool is taken from the day the settlement is made in court. However, it should only include assets in which parties have a joint interest. So, ordinarily, assets acquired after separation don't fall into that category.

    The forum will hopefully correct me if I'm wrong, though.
     
  3. Needinghelp

    Needinghelp Active Member

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    Thanks very much AllForHer for your reply.
    That would make sense and seem fair.

    So in my situation, if I have switched my salary from being paid into a joint account to now being paid into a personal account the balance of this personal account should not be included in the final asset pool on day of settlement?

    I am now doing it this way and then transferring more than enough funds from new personal account to joint account every month to continue to pay any household bills like mortgage, utilities, food, kids stuff etc but anything left over in my personal account is for me to spend/save as I see fit and it wont be included at settlement time?

    I want to ensure my family still gets all the bills paid and nothing changes there but I don't see why any extra I earn should just be paid into joint account also to just bring the mortgage down (and then split) now that we have separated.

    Does that seem fair and legally correct ...
     
  4. AllForHer

    AllForHer Well-Known Member

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    Yes, what you are doing is legal, and even advisable. If you were continuing to be paid in a joint account, I would be telling you to open an account of your own and have your salary deposited there, so you've taken the correct step already on this front.
     
  5. Needinghelp

    Needinghelp Active Member

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    Thanks again ..

    That is a relief, as I am being told that even if I have a personal account with own money it will end up getting included in the final asset pool come agreement day !
    What you are saying makes sense as this account was only opened up after the initial separation with $0 and any new funds come from salary that is paid post separation.

    I assume I should also get a balance of my superannuation on the day that we decided to separate?
     
  6. AllForHer

    AllForHer Well-Known Member

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    I can't be sure how your current salary will contribute to the shared asset pool - I'm hoping one of the resident lawyers here might be able to clarify - but having your account separate to your ex's is better than just leaving it all lumped together (because then it WILL be considered part of the shared asset pool).

    And yes, superannuation is taken into account for the period of your marriage, so of you worked 20 years and were married for only five of those years, only those five years will be considered part of the shared asset pool.

    Keep in mind as well that larger contributions by one party doesn't automatically mean the other party will be entitled to more. It usually means you'll be able to hold on to a bigger piece of your pie.
     
  7. Needinghelp

    Needinghelp Active Member

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    I certainly would appreciate one of the resident lawyers being able to clarify the top point on how earned salaries post separation are taken into account at final settlement.

    For the super information, I did not know that any I had earned before being married was not counted in the asset pool. I will need to find out that amount.
    My question though was any new super earned post-separation (same principle as salary). I imagine that the balance at agreed separation date is what is split, not balance on settlement day?

    I appreciate that even though one party may have contributed 80%+ of income and super over the marriage (even over 20+ years) that does not account for much when the other party ends up being the primary parent of children. I anticipate being lucky to get 40% even though that seems unfair considering my contributions financially, around the house and being a very active parent ....
     

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