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

[Flemming]

Thank you for your insight AllForHer,

Our asset pool is $50K in mutual owned assets, $70k inheritance that she received 1 1/2 year ago, $20K that I received in inheritance 2 1/2 years ago and $500K in Super all earned while we were married 75% by me and 25% by my wife.

I am inclined to accept she keeps her inheritance, I keep mine and we split everything else 50/50. Any thoughts?

Also, I do understand that I may have to split assets less favourable than 50/50 but does that really count for Super as well?

When I am 67, my income earning capacity is significantly reduced and probably the same as hers, so it seems fair that Super is split 50/50 - again I would love to have your input?

Thanks

 

[AllForHer]

I'll address your question about superannuation first.

If the Court were to decide this matter, it would almost certainly include superannuation in the shared asset pool, rather than as an individual asset to be considered separately. Although within its power to do so, it's not often that superannuation will be considered separately to the shared asset pool.

Thus, in short, when you ask if it counts for super as well, it's best to assume that it would, if the Court were asked to make a decision about how it should be split.

This is why it's advantageous to try and negotiate a property settlement outside of Court - you can consider each asset individually, rather than as a lump sum.

Now, if you consider everything except superannuation as part of the shared asset pool, the difference of $50k in respect of the inheritance that she would keep equates to a nearly 70/30 split in her favour. These are 'realisable' assets, and can therefore be relied on as a foundation to build a life for herself in the meantime, which is an opportunity that superannuation doesn't provide since even in property settlement, superannuation is subject to superannuation laws (namely that it can't be ordinarily accessed before the age of retirement).

Accordingly, you'll be more reliant on your income to rebuild your life, rather than on existing realisable assets, so in my view, I would say this is a fair split.

For superannuation, you might consider a 55/45 split in her favour, simply because you will be able to accumulate a lot more superannuation than she will over the course of the next 10 or 15 years. It will also bring the total division to 60/40 in her favour, which is about the average. I also think that being a bit more generous with the superannuation will help you avoid Court, which means the realisable assets won't be rapidly depleted by legal fees.

In any case, you do have to get legal advice as part of the property settlement process. Legal Aid offers free consultations for family law matters, so it might be worthwhile giving them a call.

 

[Flemming]

Thank you AllForHer,

That is really helpful of you.

How do I find a lawyer who can help me with these specific issues around Child and Marriage support and property settlement? I guess in the end I need to prove I had legal advice?

I'm a Finance Director in profession, so I want to control and manage the process myself and don't want to pay for lawyers juggling paperwork. I have already got a quotation from one lawyer and although they took three days to review their response to me, it seemed like it was just a standard letter they had taken out of the cupboard...and then charging $2000 - $15000 as a starting point.

Will Legal Aid be enough to prove that I have taken legal advice or do I need a lawyer? If so, can you recommend one?

Really appreciate your input.

Best Regards

 

[Flemming]

Hi AllForHer

Also I should mentioned that my salary is about $255K before Super and potential bonuses, whereas my ex is earning around $45K.

Does that make a difference in your opinion on Spouse and Child Support?

 

[AllForHer]

First, lawyers. I can't give recommendations for lawyers, unfortunately, but what you'll be looking for is a family law specialist. They will cover all basis - divorce, property settlement and parenting matter.

For the divorce itself, you don't need a lawyer. It's a simple form and the only thing the Court needs to see is that you and your ex have been separated for at least 12 months. The form is on the Family Court website.

For the property settlement, I am fairly certain legal advice can be in the way of a consultation with either a Legal Aid lawyer (if you're on a low income) or a paid lawyer (see Find a Lawyer & Book Online Instantly | LawTap). You do need proof, but they'll provide that for you. All it needs to show is that a lawyer has provided legal advice to you.

For the parenting matter, you can settle this without lawyers by attending a family dispute resolution conference and agreeing to a parenting plan about how often the kids see you. The kids are at an age where their views should be given a lot of weight, so this should hopefull mean it gets settled amicably rather than through a court battle.

Regarding spousal maintenance and child support, the new information doesn't change my point of view about not agreeing to either. Child support is an entitlement, and the amount payable is determined by a pre-existing formula that's linked to your income and care of the kids - like it or not, you'll have to pay it.

Spousal maintenance, on the other hand, is not an entitlement, so you won't have to pay it unless you agree to or the Court forces you to. Refusing will force her to weigh up whether it's worth spending legal fees on, which it probably won't be.

Just wanting to maintain the same standard of living as before you separated isn't a good enough reason for the Court to make an order for maintenance, either. The principle is that both parties need to be able to cover their reasonable living costs, so if she's earning $45k, has a $50k inheritance and no significant debts to service (such as a mortgage), then the Court is unlikely to see merit in making an order for spousal maintenance because she's quite capable of covering her own costs, particularly in light of a property settlement and your obligations under child support.

 

[Flemming]

Thank you again for the very helpful insight.

In Singapore right now for the next three weeks but will call the Legal Aid number in Sydney and take it from there.

I owe you a beer!!!!

 

[DadyO]

Hi Flemming

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

We ended up with a 50/50 split as going to court would have blown any benefit. And the outcome would have been a toss of the dice if it went to court.

I bought her half of the house and support the two older children. The 13-year-old is 50/50 custody and I am paying about 15% above the mandated support payment. We split the super so we have the same.

One of your kids is an adult and the other is independent enough so a your ex can seek full time employment. This makes claiming support difficult for her.

As the main asset is the super I would give some extra say 60/40 and offer to pay a bit extra on the child support. That means you have 4 years of support for one child and then you're free.

I took the attitude that this is not about what's "fair" but minimizing cost.

 

[DadyO]

Thank you again for the very helpful insight.

In Singapore right now for the next three weeks but will call the Legal Aid number in Sydney and take it from there.

I owe you a beer!!!!

Legal Aid won't touch this (you earn too much). You will need to get a lawyer. We came to an agreement then my wife's lawyer drew up the consent orders and I represented myself (this is not for everybody).

70 % of the work is filling out this form http://www.familycourt.gov.au/wps/w...&CACHEID=cfa7f265-983c-48cb-9663-64d05cae32e9

I filled it out in advance and saved a lot of time with the lawyer.

 

[Flemming]

Thank you for your input DadyO, much appreciated

That is the conclusion I'm getting to, too.

I'm am thinking of offering Spousal Support rather than increasing Child support - in my mind I have then closed that avenue for her as well. Obviously only until my youngest child turns 18. Any thoughts on that strategy?

Also by offering over and above on support can I then be more aggressive on property settlement and go 55/45?

Obviously, I want to offer her a package where there is no benefit of going to court.

 

[Flemming]

Legal Aid won't touch this(you earn too much). You will need to get a lawyer. We came to an agreement then my wife's lawyer drew up the consent orders and I represented myself(this is not for every body)
70 % of the work is filling out this form http://www.familycourt.gov.au/wps/w...&CACHEID=cfa7f265-983c-48cb-9663-64d05cae32e9
I filled it out in advance and saved a lot of time with the layer.

Yes, I have subsequently come to that conclusion on legal aid as well.

Thank you.