LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

SA Separation and Property Settlement - Thoughts on Distribution of Assets?

Discussion in 'Family Law Forum' started by DadyO, 3 October 2015.

  1. DadyO

    DadyO Well-Known Member

    Joined:
    9 July 2014
    Messages:
    27
    Likes Received:
    0
    Hi all
    I know this type of question has been asked to death but every situation is a bit different and I would like some opinions.

    I am entering into an amicable separation then divorce(we hope). This is well considered and won't be changing.

    Some detail.
    The marriage, 20 years.
    Three children 19(moving out) 17(Y12 next year) and 12(Y7 next year)
    We own a house outright and have cash & shares, no debt.(Nothing to flash middle class for SA)
    We both have superannuation, mine is about 3 times the value of my wife's.
    I work full time and she works 2 ½ days and looking for more.

    I am happy to start from a base of a 50/50 split with me paying 30% of my income as child support for the youngest until she turns 18 or leaves school. Obviously this is flexible according to custody/housing arrangements.The 17yo will probably live with me.


    Here is the crux of the question.
    Through the death of both my parents I received over $200k or 25% of our total wealth (including superannuation). This contribution not only contributed to our wealth but allowed for the savings through reduction in our mortgage over the last 8 years, making the true contribution much larger.

    I feel that I should benefit for this extra contribution for property settlement, and receive an additional $150k in the split or keep all my super + $50k. Her Mother is still alive and my wife will receive 50% of her estate when she passes.

    I feel this is an equitable proposition but my wife wants 50%.

    Thoughts? Comments? Questions?
    Thanks
     
  2. DadyO

    DadyO Well-Known Member

    Joined:
    9 July 2014
    Messages:
    27
    Likes Received:
    0
    I just calculated that 30% of my income is 3 times the calculation for child support. So I would offer approximately 20% which is an extra $30K above the child support payments using the basic formula over next 5 years.
     
  3. Lawyering mum

    Lawyering mum Well-Known Member

    Joined:
    26 September 2015
    Messages:
    28
    Likes Received:
    1
    Hi
    There are other factors which need to be considered in the distribution (such as non-financial contributions).
    It is important that you both speak to your own individual lawyers for advice and they will be able to assess the property pool and consider all relevant factors. It will make both lawyers' jobs a lot easier if you both have some idea on what you want and are reasonable about it.
    Good luck
     
  4. DadyO

    DadyO Well-Known Member

    Joined:
    9 July 2014
    Messages:
    27
    Likes Received:
    0
    Thanks Lawyering mum but this is the reason I made such a detailed post.
    When ever anybody asks about this kind of question this is the same response "it's complicated and see a lawyer'.
    I have considered non-financial contribution as my wife has been primary carer and home keeper for 13 years and therefore started from an assumption of 50/50 split.

    I would really like some opinion. It doesn't need to be a definitive answer just somethings to add to the pot when deciding how to progress. I will get professional advice when needed.

    So please if anybody can contribute or ask a question that would be great.
     
  5. Lawyering mum

    Lawyering mum Well-Known Member

    Joined:
    26 September 2015
    Messages:
    28
    Likes Received:
    1
    Hi
    It is not as simple as a 50/50 split and that's why further information is required.

    As lawyers we are limited in what we can advise on when we are not retained (insurance reasons) nor have the opportunity to obtain all the information required. It would be negligent of us to advise simply based on the information provided, as more is required.

    Most lawyers are happy to give general advice but will not give you definitive answer.
     
  6. Lawyering mum

    Lawyering mum Well-Known Member

    Joined:
    26 September 2015
    Messages:
    28
    Likes Received:
    1
    Sorry hit the button before I was ready...
    Most lawyers will not give definitive answers on here as there are many factors that needs to be considered, often most of which the parties are unaware of. Whilst the information you have provided is detailed, it doesn't go far enough.

    And we (as lawyers, and this is my view) are not saying "go an see a lawyer" to cause anyone difficulties, moreso for questions such as yours are a little more complex and there is further information required which you have not provided. A lawyer is able to go through the information you provide and also ask the appropriate questions to gather further information before providing you with a detailed advice.
     
  7. AllForHer

    AllForHer Well-Known Member

    Joined:
    23 July 2014
    Messages:
    2,319
    Likes Received:
    423
    I find that people tend to have a better capacity to reach a property settlement if the parties are able to understand how the court would deal with their situation, because they can apply the same principles to their own situation.

    The court follows a four-step process:
    1. What is the total value of the 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?

    Start at 50:50 like you've suggested and work backward from there.

    Whoever took significant time off work to raise the children will be slightly less employable than the other because of the years of experience lost while caring for the kids, so make a concession for that. Whoever is caring for the kids (even as adults living at home) should probably be afforded additional concessions as well.

    Inheritance is complicated, but you can't establish your own property settlement based on what is expected of your wife's mother's will. As yet, that's an unknown. She may get everything, she may get nothing, so just go by the existing asset pool because that's what the court would do.
     
    DadyO likes this.
  8. DadyO

    DadyO Well-Known Member

    Joined:
    9 July 2014
    Messages:
    27
    Likes Received:
    0
  9. Flemming

    Flemming Active Member

    Joined:
    6 September 2016
    Messages:
    8
    Likes Received:
    0
    Hi DadyO

    Interested in hearing where you ended up in, as I am in a similar situation?

    I'm a high-income earner. Wife is earning a part time admin salary but can go on full time. We are both in our early 50's. Our two kids are 14 and nearly 18 - she will probable have the kids due to my travel. We have a small asset pool - renting house - but Superannuation balance is around $500K.

    She wants spousal maintenance, significant child support over and above the max, and 75% of all assets.

    Don't give me the 4 principals - I know them but want more detailed guidance.

    Best Regards
     
  10. AllForHer

    AllForHer Well-Known Member

    Joined:
    23 July 2014
    Messages:
    2,319
    Likes Received:
    423
    First, don't agree to spousal maintenance. Without your agreement, there is no way to get it unless by Court order, so force her to take it to Court if she wants and let the Court decide if she needs it. She would need to show she has suffered financial difficulty as a result of the marriage to attain it, which will be difficult if she is already working, and the Court would need to be satisfied that you actually have the capacity to pay it, as well.

    This doesn't happen often; it's mostly reserved for those with large asset pools, long marriages and very high incomes. In most cases, the Court expects each party to support themselves after separation with the aid of a property settlement, rather than spousal maintenance.

    Second, don't agree to anything outside of what Child Support assesses you are required to pay. Again, if she wants above and beyond that amount and doesn't have your agreement, she would need to apply to the Court for a departure from the child support assessment.

    So, third, just focus on the property settlement.

    Without knowing a great deal of information about your unique circumstances here, I am still inclined to assert that 75/25 in her favour is an extraordinarily high expectation. The average tends to be more around 55/45 in the favour of the primary caregiver for asset pools and incomes in the low to moderate range. For larger pools, it tends to be more in the realm of 60/40.
     

Share This Page

Loading...