8 tips from a family lawyer: what you need to do when you separate
Separation is understandably a trying time for many couples, however it is important to also remember to address the practical issues. Here is an extensive ‘To Do List’ with 8 tips from a family lawyer of what you need to do when you separate.
1. Note the date of your separation
The first thing you should do is to note, your date of separation. This date is important because it calculates any time limits you have to bring a property settlement claim and make a divorce application. This date will also be used for any claims made to Centrelink, Medicare and the Child Support Agency. Remember, you can be separated whilst still under the one roof as we explain here.
2. Change passwords and pins
We’re all guilty of sharing our passwords, but on separation its especially important, to change all your passwords for your online banking, social media accounts, email accounts, cloud accounts and the like. Choose random passwords using apps that can generate them, such as Last Pass or Norton Password Manager etc.
It’s important to ensure that all tracking apps are off or inaccessible to your ex. For example, apps with location tracking include Google+. Check that your ex can’t track your whereabouts using “Find my iPhone via a shared iCloud or Android Device Manager.
3. Stay in the House (common mistake in the passion of the situation)
Unless you or your children are experiencing or are at risk of experiencing family violence, its preferable, at least in the short term to stay put.
There are several reasons:
- Once you leave the house, it’s difficult to regain access if your ex refuses to let you back in without their consent. If you leave – your ex may be entitled to exclusive possession of the home, until a property settlement is reached.
- Secondly, if your name is on the mortgage, you remain liable for payment irrespective of whether you live in the property or not. If your ex stops paying, you’ll end up responsible for both the mortgage and paying rent elsewhere. Having said that, if you find yourself having to leave the property with your ex remaining, and with you continuing to pay the mortgage, this will be taken into account in the overall property settlement – but don’t expect a dollar-for-dollar adjustment.
If you decide to leave the family home, take what you need or want to keep. You should take all your personal documents, including your passport, birth and marriage certificate, the relationship’s financial documents, your children’s birth certificates and passports.
4. Children (staying in the house helps a lot, near schools, friends, stability)
Make Arrangements for your Children
As a parent, your primary concern will be the arrangements for your children. You’ll need to work out where the children will live and how much time they will spend with each of you. Your arrangements should focus on your children’s best interests and be appropriate for their age and developmental needs. Parents tend to get fixated on the idea of spending equal time with their children regardless of whether it’s practical or developmentally appropriate. Remember, it’s not about what’s fair on either of you but whether it’s in the children’s best interest. Are your arrangements practicable? Do your kids have the ability to cope with the proposed arrangements, physically, mentally and emotionally?
If you can’t reach an agreement and unless an exception applies, (for, example domestic violence) you’ll need to try family mediation before you can apply for a parenting order. There are several private mediation providers as well as state-based, including Relationships Australia who can help.
Child Support (usually don’t rush to the Child Support Agency for anything other than enquiries)
Child support is the money a parent pays towards their child’s upbringing. All parents are responsible for supporting their child financially – even if they don’t see them. Child support is a regular payment to the parent who cares for the children most of the time. To help you agree on an amount, work out your current children’s expenses by making a list of what you spend each month. If you can’t reach a private agreement, you can apply for a child support assessment.
Statutory child support is the minimum amount payable. It’s calculated by factoring how much you both earn, the number of children, their ages, how often your children stay over with them, whether they have other children, or children living with them. For guidance, you can use the Dept. of Human Services child support calculator. However, note that a child support assessment does not generally include private school fees, medical fees or costs associated with extra-curricular activities as discussed here.
5. Sort out your finances
As soon as you separate, contact Centrelink and determine if you are entitled to any new or amended Centrelink benefits.
Gather Financial Information
Ideally, before you separate gather as much financial information about your relationship. Financial documents include anything related to the assets, liabilities and financial resources for you and your ex. Financial records include bank statements, credit card statements, loans, mortgage statements, payslips, tax returns, superannuation statements and so on.
Unfortunately, it’s not uncommon for one party to have been kept in the dark over the finances during a relationship. When you don’t know the extent of the property pool, the harder it becomes to work out a fair settlement. When you have this information at the outset, your lawyer can give you an indication of what your property settlement will look like.
If you can’t obtain documents, or simply do not know the extent of the property pool, there are ways of getting this information. Sometimes this process can be costly, especially if a court application is then required.
Close Joint Accounts & Credit Cards
Close joint accounts and credit cards that you have with your ex or put them on hold so neither you nor your ex can take money out or max them out. But before you do, don’t forget to consider payments that have been set up from the accounts – you don’t want to miss payments.
Open a bank account in your name (NOTE: don’t rock the boat if the other party is paying for everything)
Let your employer know (if you’re employed) of your new bank details so that your salary is paid into that account and that you have complete access to your funds.
Cancel any redraw facility (REMEMBER: don’t rock the boat if the other party is paying for everything)
If you have a redraw facility with your mortgage, cancel it. Alternatively, make arrangements with your bank that monies can only be withdrawn with joint written consent. The last thing you want to happen is for funds being siphoned off by your ex.
Agree who pays the mortgage
If you can’t reach an agreement about who will pay the mortgage and for how long, speak to your lender. Most banks will suspend mortgage payment on the grounds of financial hardship until a property settlement is achieved. Usually, the person who remains in possession of the house pays for the mortgage, if they can afford it, or if they can’t, a lesser contribution.
6. Make or review your Will
When you separate, one of the most important things you should do is to change your Will. The majority of married and de-facto couples make reciprocal Wills appointing each other as their executors and beneficiaries.
However, many married couples fail to appreciate that their current Will remains valid without a Divorce Order, which means your ex-spouse can still inherit your estate. If you were in a de-facto relationship, your separation will not have any impact on your Will either. Worse yet, this can even happen without a Will – so the key takeaway here is to make sure you make a Will or update it.
7. Sever any joint tenancy
If you own property jointly with your ex, you might find that you own the property as joint tenants – many people do. Should that be the case, your share in that property will pass directly to your ex.
You can avoid this by making arrangements for the property to be held as tenants in common instead of joint tenants. To change how your property is held, speak to your lender and land titles office. Alternatively, a lawyer can help.
8. GET EARLY LEGAL ADVICE
Let’s be real for a minute: any list of things, like this one, is not going to fit all situations. See an experienced lawyer.
We plan for lots of things in life and separating needs planning too. This includes obtaining legal advice with an experienced family lawyer – not from friends who have been through their own divorce or separation. Your family law situation will always be different and will need a tailored approach.
Feeling overwhelmed at this stage of your separation is completely normal. There’s lots to be done and it’s all new to you. But as you start working through this checklist, you’ll begin to feel confident, in control and ready to move forward. And remember – “there are far better things ahead than any we leave behind”.