Most separating couples, however, will have acquired property together that they will need to divide. Even property that belongs to one spouse (such as a superannuation fund) is subject to inclusion in the pool of property that is divided during a divorce. Spousal maintenance will not be an issue in some divorces, but in other divorces spousal maintenance is needed to assure that a divorcing spouse maintains an adequate standard of living.
This eBook provides an introduction to the legal concepts that govern property settlements and spousal maintenance. It offers information, not legal advice. Every individual who faces a separation or divorce is unique. To learn how the law applies to your specific situation, you should consult with a family law lawyer.
The Family Law Courts have the power to issue financial orders. Some financial orders address the division of property, including superannuation funds, homes, vehicles, household goods, funds held in bank accounts, stocks and other investments, and any other property that you or your spouse own, separately or jointly.
Other financial orders address spousal maintenance by requiring one spouse to contribute to the current or future support of the other, either by making periodic payments or by an award of property or a lump sum payment. Financial orders can also be entered when a de facto relationship ends. De facto relationships are discussed in another eBook in this series.
In most cases, you cannot seek a financial order from a Family Law Court until you have complied with the pre-action procedures and disclosure requirements that are discussed in Preparing for Separation and Divorce, another eBook in this series. Those procedures require you to make a good faith effort to arrive at a property settlement through negotiation or mediation before you apply for a financial order. If you are able to make an agreement, you have two choices.
You can divide your property and agree upon spousal maintenance (or agree that no spousal maintenance is required) and do nothing further, or you can put your agreement in writing and apply for a consent order. A consent order will formalize your agreement while giving you the same right to enforcement of its terms that you would have if the court had entered an order after a hearing.
If you do not resolve your differences using pre-action procedures, you can apply to the Family Law Courts for a financial order. You must usually do that within a year after your divorce becomes final. If you wait more than a year, you need to ask the court for permission to apply for a financial order. Permission is not always granted, so it is best to apply within a year.
Before you apply for a financial order, you must make the full and frank disclosures that are discussed in Preparing for Separation and Divorce. After you apply for a financial order, you and your spouse must exchange financial documents at least two days before the first court event. If further disclosures are necessary, the court will set a deadline for making them. In addition, if you have not agreed upon the value of your assets, the court will probably order you to obtain and exchange opinions regarding those values. Evidence of valuation might include:
To the extent that you can agree on a valuation or on the expert who will appraise the property, you should do so. Using a single expert will save you time and money and, in any event, the court will probably encourage you to agree to use the same expert if you can.
The specific procedure the court will follow depends upon the court in which your case is heard. You might be required to attend several court events, including those described below.
In the Family Court, the first court event (in the absence of an emergency) is usually a Case Assessment Conference that is held before a Registrar. The Registrar is empowered to perform several functions, including:
In most cases, immediately after the Case Assessment Conference concludes, the Registrar will convene a Procedural Hearing. Unlike the Case Assessment Conference, the Procedural Hearing is open to the public. At the Procedural Hearing, the Registrar will enter orders that the parties have agreed upon or will enter procedural orders in anticipation of a contested hearing. You and your spouse will ordinarily be required to prepare, file, and exchange:
If your case is in the Family Court or the Family Court of a State, section 79(9) of the Family Law Act prohibits the court from making an order in property settlement proceedings unless the parties have attended a Conciliation Conference. The court may make an exception to that requirement if there is a need for urgency, if special circumstances exist, if the Registrar who presided at the Case Assessment Conference believes a Conciliation Conference would be futile or unnecessary, or if it is not practical for the parties to attend a Conciliation Conference.
Conciliation Conferences are intended to give the parties another chance to settle their differences without the need for a court hearing. The conference is generally handled by a deputy registrar or an attorney acting under the court’s direction. The conciliator will try to guide your negotiations by reminding you of the process that the court will likely use if a property settlement is made by a judge after a hearing.
There are many advantages to settling your dispute at the Conciliation Conference, if not before. You will save time and legal fees if you do not proceed with a contested hearing. More importantly, you will be in control of your fate. If you leave the property settlement to a judge who does not know you, there is no guarantee that your priorities will be reflected in the division of property that the court makes.
In any event, it is wise to agree on as much as you can, either during or before the Conciliation Conference. Try to agree upon the division of items (like used furniture and kitchenware) that probably have little value. Negotiating for items with sentimental value assures that you will keep them. That is an assurance you lose if the court decides how to divide those items. The court might even decide that items you both want should be sold and the proceeds included in the property pool, particularly if they cannot easily be valued. That result will not please either you or your spouse.
Prior to the contested hearing, you might be required to summarize your evidence in a case information form. If you and your spouse obtained a single expert witness to value property, you will need to file an affidavit from that witness.
The hearing at which the judge will consider evidence is essentially a trial. You will need to comply with court procedures, including Family Law Rules and most Rules of Evidence. The court will consider the evidence that you and your spouse present. The court will determine what property belongs in the property pool and will decide upon a property settlement. You and your spouse both have the right to be represented by a lawyer. To be sure your interests are protected and that your evidence is not excluded because you did not follow necessary procedures, it is wise to have a lawyer on your side during the hearing.
The court is required by law to consider certain factors in making a property settlement. To assure that they comply with that requirement, courts generally follow four steps:
The duty of one spouse to support the other continues after a marriage terminates, at least to the extent that support is necessary. The duty falls equally upon both spouses but a spousal maintenance obligation is not imposed automatically. Section 72 of the Family Law Act requires a spouse to support the other spouse after divorce if:
Factors that are relevant to spousal maintenance include:
An award of spousal maintenance is most common when one spouse has sacrificed his or her career or suffered a loss of earning capacity in order to act as a homemaker or parent, allowing the other spouse the opportunity for career advancement and improved earnings. The court might make an award of spousal maintenance not just to provide support but to permit the spouse who made sacrifices to obtain additional education or vocational training so that the spouse can become self-supporting.
An award of maintenance can be accomplished by:
Spousal maintenance awards can be registered with and collected by the Child Support Agency. Spousal maintenance orders can be amended or terminated if circumstances change (if, for instance, a former spouse who receives maintenance remarries or begins to earn a substantially higher income, or if a spouse paying maintenance suffers a disabling injury or loses a job).
Warning and Disclaimer
Property Settlements and Spousal Maintenance 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.