NSW What to Do to Get a Fair and Equal Separation?

[Helkel]

Tips needed for covering my arse....

Husband is a longtime pot smoking lying cheating arse. He has recently had cancer treatment and given up work. Three children, all teenagers and older. I work 2 days a week on weekends. I'm financially bound as most everything is in his name. He has stated he will not leave. I am not sure of the financial implications if I were to go.

As well I am responsible for aged mother and travel weekly to her place (2 hours away and 3 hours from my work).

Now my questions relate to not making a wrong decision financially... I am finding it hard to be the one who ends it as I am a wounded victim... Anyone been through a similar separation?

 

[AllForHer]

If he's your husband, it doesn't matter whose name all the assets are in. You have a legal interest in them, so they form part of the shared asset pool, which means you're entitled to a portion of their value in property settlement.

I can't help you with the actual leaving part, but the legal side of the thing is that once you do separate, you can and should seek a property settlement with your ex. If you can't agree on one together, you've got up to 12 months after your divorce is finalised to file for property settlement with the Court. If you do, the Court determines the outcome by way of the following considerations:

1. What is the value of the shared 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?

It's impossible to predict an outcome, but some things to note is that the Court won't disadvantage one parent who has been a stay-at-home parent while the other has worked to support the family, and in your case, you and he will both have significant future needs, particularly if you're looking after the kids and he is facing a future of protracted treatment and illness as a result of his medical condition without future prospects for work.

Unless you're listed as an actual carer with Centrelink, it's unlikely the matter of you travelling to care for your mother will be given weight by the Court in property settlement. His pot-smoking, lying and cheating also won't be taken into consideration.

It is best to get legal advice on this. Legal advice is mandatory for all property settlements, so best get in touch with Legal Aid or another legal service so they can assess your matter and give you more refined assistance.

 

[Aneta Dimoska Di Marco]

Hi Helkel,

It is difficult to give general advice or "tips" in these sorts of situations. You really will need to speak to a family lawyer who will review your situation properly and ask all the right questions.

To give you the heads up on the sorts of questions they might ask, this will include:
1. What assets are in his name, your name, joint names?
2. What debts are in his name, your name, joint names?
3. Plot out your and his average wages brought into the relationship over the course of the relationship - so who was the bigger bread earner
4. How long have you been married?
5. If shorter marriage, say <7 years, initial contributions of assets into the relationship is relevant.
6. Who did what in maintaining the assets, looking after children, taking care of day-to-day living activities.
7. What are the future earning capacities for each of you. For example, if your husband cannot work again, there will be an adjustment in his favour.

There are a couple of things you can do to ensure you protect yourself somewhat prior to separation:
1. If there is any equity in your mortgage or any funds in joint accounts, tell your bank that your separating and require two signatories to withdraw funds.
2. Stop your income going into the joint account and set up a sole bank account (this will still need to be disclosed in property settlement).
3. Download copies of bank transaction histories for last 12 months. Highlight any of his wastage of money - e.g. pot. Estimate the level of contribution to mortgage and outgoings of each of you.
4. The main assets for division in typical situations are property (home) and super. If you leave the home, it will be much more difficult for you if he doesn't want to leave. He will drag out the legal process longer to wear you out. If the house is in his name, he will have full control over whether he sells and the onus will be on you to take the matter to court and obtain orders to sell the property, and prevent him from further encumbering the property. Ergo, your legal costs will run higher at the beginning.
5. You can lodge a caveat on the property if you do leave to protect your interest, but only if you have contributed to the property in a manner that creates an equitable interest (see a lawyer before you do this because there can be consequences in the form of damages)
6. As you probably wont need parenting orders, you are in a position where you don't need to wait too long after separation to let the dust settle. Start by telling him what you think is a fair division. If he wants to stay in the house, then put a figure to him to buy you out. if he doesn't agree, commence court proceedings (with lawyer's advice).

All the best.