If you are looking at a property settlement, you probably have a number of concerns, not least of which are the following:
1. What is my fair share?
2. How can I know whether my spouse is hiding assets or income?
3. How can I show the benefits I brought in to the relationship?
4. Is everything going to be eaten up by the lawyers?
The best thing that you can do is to get a realistic assessment of your prospects early in your case.
We can explain what the court takes into account, what is realistic and what the court process involves if you can't get your spouse to reach an agreement.
What the court considers when deciding on an asset split:
1. Whether there is a need to change the current arrangement.
In the vast majority of cases, this will be a box tick. However in some circumstances, such as short relationships where the parties kept their assets separate, there may be no need for intervention by the court.
2. What are the total assets held by you and your spouse?
In practice, this is where it can get ugly.
In many cases, it will be simply a matter of valuing the family home and getting balances for superannuation, bank accounts and so on.
In other cases, there can be extensive legal fights, often over the value of businesses, whether property belongs to a spouse or their family members and whether a party has properly disclosed all of their assets.
Experienced family lawyers are trained to find assets, obtain appropriate valuations and collect the evidence to prove or disprove ownership.
3. What are the contributions made by each party during the relationship?
In a long marriage with a traditional division of roles (one party earns an income whilst the other is the primary homemaker and parent) the contributions of each party would usually be considered about equal.
However, in some long marriages and most short ones, there is a closer analysis of the contributions.
The first kind is financial contributions, such as earning income, inheritances received by one party and assets owned prior to the marriage.
The second kind is indirect financial contributions, such as doing renovations on the family home or doing the books for a spouse's business.
The third kind is homemaker and parenting contributions, including all aspects of caring for children as well as domestic work such as cooking, cleaning and washing. These contributions can be just as important (and sometimes more so) than financial contributions.
4. What are the future needs of each parties?
The court often makes an adjustment in the split to make up for the fact that one person will have greater financial needs in the future.
The factors that can require an adjustment are endless, but the most common are the care of younger children and having limited work experience or career opportunities.
5. Is it all fair?
Throughout the process and at the end the court will consider whether the split is 'just and equitable.'
What the court process involves:
1. Negotiation
Unless there is an urgency, family lawyers are required to try and negotiate a settlement before going to court.
With a bit of luck, you and your spouse will both have received sensible advice from experienced family lawyers and you will be able to work out an agreement (usually with a bit of compromise on each side) that the lawyers can draw up into a binding settlement.
2. Filing in court
If you can't agree, you may need to go to court.
In practice what this involves is preparing documents. You prepare an overview of all of your assets, you set out exactly what you want in the end (you can change it later if you discover more assets for example) and depending on the court you are in you will have to provide a statement setting out the important information.
The papers and filed with the court, who will then give you a date for you and your spouse to turn up.
3. First day in court
This is usually a simple event.
The lawyers will usually agree on what needs to be done to get the matter ready for conciliation, this will involve things like swapping bank statements and having assets valued.
Once the lawyers are ready, the Judge will give you a date for a Conciliation Conference.
4. Conciliation Conference / Court-Ordered Mediation
Family law property settlement matters are required to go through Conciliation or Court-Ordered Mediation.
Conciliation Conferences happen at the court with a Registrar. You, the other side and both of your lawyers will be there.
The Registrar will say what they think of the case and encourage you both to settle the case there and then.
This is a good opportunity to settle the matter and many matters are settled at this stage.
If the Court has determined there are enough means to privately fund a mediation conference, it will make orders that the parties attend mediation.
An experienced mediator can assist parties agree and settle the matter out of the Court system, saving time, stress and costs.
5. Interim hearings
Interim hearings are not a required part of the court process.
However, they are commonly necessary for a number of reasons including:
1. Deciding whether to sell property before a final hearing.
2. Giving one or both parties some of the asset pool to survive on until the final hearing.
3. Granting injunctions to stop one party doing the wrong thing with assets.
They can be filed at any time whilst the matter is still in court.
6. Final hearings
If the matter does not settle at the Conciliation Conference or mediation, it will be listed for a 'final hearing.' This is a trial where usually both sides are questioned and other people might come in to give evidence.
Because of the delays in the court, from filing court documents to a final hearing usually takes about 2 to 3 years.
Preparation for final hearings is generally a long and expensive process. It will almost always require a detailed statement from yourself, and will often require evidence from experts such as real estate valuers or business valuers (who are not cheap!)
Most people also find it a pretty horrible process. No one wants to be put in the witness box and questioned in public.
For these reasons you will be encouraged to settle the matter before then.
However, there are many cases in which you can't reach a settlement that is even remotely fair to you. In those cases you may have little choice but to go to hearing.
When you do, you need to be well prepared with experienced family lawyers on your side.