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NSW Separation and Divorce - Will I Get Anything from Property Settlement?

Discussion in 'Family Law Forum' started by dalia part, 30 July 2015.

  1. dalia part

    dalia part Well-Known Member

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    My wife and I have been separated for 2 years now ( separation) and I will be applying for a divorce next week. She has the house under her name. We have been married for 18 years, and we have a 14-year-old child.

    My wife said I will get nothing because the house under is her name before we were married. Now can she sell the house before I go ahead with the property settlement, or can she give it to my stepson (her son) who is 24 years old as a gift before the settlement. Am I allowed to get some money or not?

    If I am allowed to get some money, but she sold it before the property settlement, will I still get any, because she has sold it before the property settlement? Also I really want to get a divorce but can she refuse in the family court because she has to come to court because we have a child?

    I am just worried if she knew I will be divorcing her and want a property settlement together because she might get mad and delay the divorce. Can she delay the divorce? Also, can I get some money even if the house is under her name? And if she sells the house now before property settlement, can I still get any money? She might sell the house and it will be too late to do a property settlement.

    Thank you.
     
  2. AllForHer

    AllForHer Well-Known Member

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    Yes, you will be entitled to some portion of the house, the portion of which will be dependent on your contribution to it both financially and non-financially, and what your future needs are. It doesn't matter that it's in her name - it forms part of the joint asset pool because you both had an interest in it and benefitted from it, and that will stand even if she sells it.

    However, I would apply for a caveat on the house until the property settlement is complete. A caveat will stop the house from being legally dealt with until your interest in it is determined.

    You will also need to organise a family dispute resolution conference to try and determine a property settlement together with the other party.

    Hope this helps.
     
    JS79 and Tim W like this.
  3. dalia part

    dalia part Well-Known Member

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    thank you,
    (1) but if she sold it for example last year, I still can get any or too late?
    ( 2) how long normally does it take for the settlement to be finished?
    (3) if she know i am applied for divorce,can she make any excuse to make the divorce at the court take long time for example if she said

    I am not give my son money or any thing like that,by the way i am have medical condition from 10 years effect me to work from time to time i am now with centerlink support for a year.

    thank you
     
  4. AllForHer

    AllForHer Well-Known Member

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    Yes, you can apply to have the value of the house that was sold last year added back into the joint asset pool.

    In Australia, the court will determine a property settlement as follows:
    1. What is the total value of the joint asset pool?
    2. What are 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?

    In your circumstances, the house, even if sold, should be added back to the joint asset pool under step 1.

    If she worked and you didn't, that is a financial contribution, under step 2. However, if you remained at home and cared for the child for significant periods, that is a non-financial contribution. The court holds that a party will not be disadvantaged in a property settlement if they have contributed to the joint asset pool in means other than financial.

    If you suffer a medical condition, that is a future need, at step 3. You may have a depleted capacity to work, and as such, may be entitled to a slightly higher percentage of the joint asset pool.

    Whether the settlement is just and equitable is for the court to decide, but it's preferred that parties reach agreement about a property settlement without court intervention. A family dispute resolution conference is the best option for achieving agreement about a property settlement, and it is also a mandatory step before proceedings can commence. If the court is asked to decide a property settlement for you, it can take some time to determine, but you will only have 12 months after the divorce is finalised to file for a property settlement with the court.

    A divorce in Australia is granted if the relationship is deemed to have broken down irretrievably, which is demonstrated by a separation period of at least 12 months. If this requirement has been met (along with some citizenship/residency requirements), the other party will be unable to stop the divorce being granted. Basically, a person cannot be forced to remain married against their will.

    You may be required to pay child support for the maintenance of your child. The amount will depend on the child's care arrangements and your respective incomes and assets.
     
  5. dalia part

    dalia part Well-Known Member

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    thank you, what if i will go back to stay with my family overseas for 1 year, can i still get a divorce or no? if i plan to go overseas, will this affect my settlement or this nothing to do if i go overseas for short term or long term?

    thank you sir or madam
     
  6. dalia part

    dalia part Well-Known Member

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    Thank you. How long does it normally take for the settlement to be finished? Also how much will it cost because I am not working now due to a medical condition?

    Thank you
     
  7. AllForHer

    AllForHer Well-Known Member

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    These questions can't be accurately answered because it depends on the nature of the case and the nature of the parties. A property settlement can take anywhere from two months to two years, and the cost can be anywhere from nothing to $25,000. You should contact Legal Aid about this matter to determine your eligibility for funding, in any case.
     
  8. dalia part

    dalia part Well-Known Member

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    Now I did not have any document with me about my wife house because under her names before been marriage. We been marriage 20 years. She sold one house 3 years ago for $500.000. I still get some of it or too late? Also she said she will put this money under her son 24 years in his bank account (step son). I still get some money from it or no because she give it to her son,my young son said she get a new land to build a new house but under my wife name and my stepson name.

    What if she refuses to show any document or she moves in a defendant address?

    Thank you
     
  9. dalia part

    dalia part Well-Known Member

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    So I don't have any documents about the house overseas - Can I still get some money from it or nothing I can do about it?

    Thank you.
     
  10. dalia part

    dalia part Well-Known Member

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    Hi sir, she had a unite overseas in another country but she sold it 15 years ago this unite can add in the total of the property? Also if I can't prove she was had a unite and sold it because I can't get proof for it, still add it or no, because it has been 15 years since it's been sold and no proof too?

    Thank you, sir
     

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