Whether to separate from a spouse, and eventually to file an application for divorce, is one of the most difficult and stressful decisions you will ever make.Before you finalize that decision, you should do as much as you can to prepare for the impact that separation or divorce will have on your life and the lives of your children.
In this eBook, we suggest some questions you will want to think about before moving forward with a separation. We also explain the steps you will need to take before filing an application for divorce.
This eBook is intended to provide you with helpful information if you are thinking about a separation or divorce. It does not attempt to provide you with legal advice and it is not a substitute for representation by a lawyer.
Particularly when a divorcing couple cannot agree upon financial or parenting issues, the law can be complex. It applies to different couples in different ways, depending on their financial resources and needs as well as the needs of their children. If you decide you are ready to go forward with a divorce or separation, you should seek advice from a family law attorney.
1. Questions to consider before you decide to separate
You need to answer a number of question before you decide to pursue a separation or divorce. If you and your spouse are able to have rational, nonviolent conversations, it is best to arrive at answers you can both agree upon. You might only arrive at temporary solutions to these issues, but that is better than coming to no agreement at all. Even if you cannot make decisions together, these are some of the questions you need to think about:
- Where will you live? Which of you will stay in your current residence after you separate? Will you both move to new but separate residences?
- How will you time your separation? If you are the victim of violence, there may be an immediate need to separate. If you can wait, there might be an economic benefit to waiting. For instance, if you both signed a lease on the property you now occupy, you might want to separate when the lease ends so that neither of you will be required to pay a share of the rent for premises in which you no longer live.
- If you own your residence jointly, will you need to sell it? If one of you wants to continue living in the residence, can that person afford to make mortgage payments with his or her income alone? Can the spouse who remains in the home afford to pay a fair property settlement to the spouse who leaves without selling the house?
- If you depend upon your spouse for financial support, how will you support yourself after separation? Will you require payment of spousal maintenance?
- What debts do you and your spouse owe? Who will pay those bills?
- If you move out, what furniture and other jointly owned possessions will you take with you?
- If you have joint bank accounts, will you use some of the money in those accounts to fund an account in your own name?
- Do you need protection? If you are the victim of violence, will your spouse respond violently to your decision to leave? Is there a safe place where you can go, at least temporarily? Will you need to seek assistance from the police or the courts to secure your safety?
If you have children, it is even more important to work cooperatively to arrive at answers to the following questions. You should both have an interest in putting the children first. Divorce is never easy for the children of a marriage, but you make it harder on them if you cannot agree to do what is best for them.
- How will you explain the separation and/or divorce to the children? Will you tell them together? Can you make the children understand that they are not at fault? Can you each agree not to say bad things about the other spouse when talking to the children? Can you each agree that you will not encourage the children to side with one parent against the other?
- Where will the children live after you separate? How much time will they spend with the other parent and on what schedule?
- If the children will be living with one parent most of the time, how much will the other parent contribute to their support?
- Can you share responsibility for making important decisions about the children’s healthcare, education, and other important issues? If not, who will make those decisions? How will you communicate with each other to keep each other informed about school events, vacations, health problems, and other issues concerning the children?
If you are having difficulty reaching an agreement concerning financial or parenting issues, you should consider mediation. Another eBook in this series discusses mediation in more detail. If you cannot reach an agreement, you can ask the Family Court to enter a financial order and/or a parenting order, but you need to follow the pre-action procedures we describe next before you can apply for those orders.
2. Exceptions to pre-action procedures
If you cannot agree upon a property settlement or on the amount one spouse should pay to the other for maintenance, you will need to ask the court for a financial order. If you cannot agree upon custody, visitation, or other issues affecting your children, you will to ask the court for a parenting order. In most cases, before you can apply to the Family Court for a financial or parenting order, you need to comply with pre-action procedures.
The Family Law Rules 2004 specify the exceptions to the requirement that parties participate in pre-action procedures. You do not need to comply with pre-action procedures if any of the following are true:
- You are only applying for a divorce;
- You are applying for child support;
- The application is urgent;
- Delay in filing would cause undue prejudice to a party;
- Another application has been filed in the same case within the previous twelve months;
- The case involves a bankruptcy;
- You are applying for a parenting order and are alleging past or anticipated acts of child abuse or family violence; or
- You are applying for a financial order and are alleging past or anticipated acts of family violence or fraud.
3. Pre-action procedures: dispute resolution
Unless one of the exceptions described above applies, you cannot apply for a financial order or parenting order until you participate in a process of dispute resolution. To do that, you need to take the steps that are mandated by Schedule 1 of the Family Court Rules 2004. Those steps require you to:
- Give a copy of the Family Court’s pre-action procedure brochure to your spouse and invite your spouse to participate in dispute resolution. You can get a list of dispute resolution services that are available in your area from the staff of the nearest Family Court Registry;
- Agree upon the dispute resolution service that you and your spouse will use; and
- Participate in dispute resolution in a meaningful way by making a sincere effort to resolve your disputes.
If you are able to resolve your dispute, it is usually best to protect yourself by placing your agreement in writing and filing an Application for a Consent Order. A consent order has the same legal effect, and can be enforced in the same way, as a financial order or parenting that is made after a contested hearing.
If you cannot agree upon a resolution of your dispute, or if one spouse refuses to participate in the dispute resolution process, you cannot apply for a parenting or financial order until you give your spouse a written Notice of Claim that provides all of the following information:
- The issues in dispute, as you see them;
- The orders you plan to request;
- A genuine proposal to resolve the issues in dispute;
- A deadline for your spouse’s reply (at least 14 days after the date of your Notice of Claim); and
- A copy of the Family Court’s pre-action procedure brochure.
A spouse receiving a Notice of Claim must accept or reject the settlement proposal in writing by the specified deadline. If the proposal is rejected, the reply must also state:
- The issues in dispute, as you see them;
- The orders you plan to request;
- A genuine counter-proposal to resolve the issues in dispute; and
- A deadline for your spouse’s reply to the counter-proposal (at least 14 days after your reply to the Notice of Claim).
If your dispute involves children and parenting issues, the Family Court expects you to:
- Put the best interests of your children ahead of your own interests and motivations;
- Cooperate with your spouse to the greatest extent possible to assure that your children maintain a strong relationship with each parent;
- Avoid encouraging your children to take sides in any dispute;
- Avoid hostile or inflammatory exchanges, particularly in front of your children; and
- Seek only those orders that are reasonably consistent with the law as applied to the facts of your case.
Unless one of the exceptions to pre-action procedures discussed above applies, the failure to engage in dispute resolution before applying to the Family Court for a financial or parenting order can result in financial penalties.
4. Pre-action procedures: duty of disclosure before seeking a financial order
Before applying for a financial order in Family Court, each party must make a full and frank financial disclosure to the other. This duty of disclosure, described in more detail in Family Law Rule 13.04 and Schedule 1, requires each party to tell the other about:
- All sources of your earnings and income, including but not limited to wages, bonuses, interest, business income, superannuation and other retirement income, dividends and other investment income, and trust income;
- All assets in which you have a direct or indirect ownership interest, including bank accounts, stocks and other investments, businesses, trust funds, vehicles, collections, jewelry, tools, pending inheritances, and all other assets having financial value;
- All assets that you sold, gave away, or disposed of within one year prior to, or at any time after, your separation; and
- All debts and liabilities including contingent liabilities.
You also need to provide your spouse with a list of all documents that you possess that are relevant to your dispute. If you are seeking a maintenance order, relevant documents include:
- Your taxation returns for the most recent financial year;
- Your bank records for the last 12 months;
- Your three most recent pay slips (if you earn wages or a salary);
- The business activity statements for the previous 12 months concerning any business you own; and
- Any other document relevant to determining your income, expenses, assets, liabilities and financial resources.
If you are seeking a property settlement, relevant documents include:
- A copy of your three most recent taxation returns and assessments;
- Documents about any superannuation interest you have, including a completed superannuation information form for the superannuation interest and all documents showing the value of the superannuation interest, including the basis on which the value has been worked out and any documents working out the value;
- Documents pertaining to your ownership interest in corporations, trusts and partnerships, including documents establishing your interest and financial statements for the past three years; and
- Unless the value is agreed, a market appraisal of the value of any property in which you have an interest.
5. Pre-action procedures: duty of disclosure before seeking a parenting order
Before applying for a parenting order in Family Court, you must provide your spouse with a list of documents in your possession or control that are relevant to the dispute. Depending on the nature of the dispute, those documents might include:
- The children’s school records;
- The children’s medical records;
- Reports and evaluations concerning the children that you received from a social services agency, family therapist, or other service provider;
- Letters from the children; and
- Drawings made by the children.
6. Pre-action procedures: expert witnesses
Sometimes the opinion of an expert will help spouses resolve a dispute. As expressed in section 15.42 of the Family Law Rules, parties to a dispute are encouraged to use expert witnesses only to resolve significant issues and, where possible, to agree upon a single witness who will provide an expert opinion. Experts must be instructed in writing and must provide a written report of their opinions. If each spouse retains an expert, the reports prepared by the experts must be exchanged.
Warning and Disclaimer
Preparing For Separation and Divorce What to Do Before You File by Alan Weiss is a self-help eBook written from the perspective of the author.
The author does not claim to be a substitute for a lawyer. Nor does he claim knowledge of any individual’s situation. This EBook does not give legal advice its aim is to give practical advice. Visit Aussie Divorce to find the right divorce lawyer.