What to do and what not to do before you separate is not talked about often enough.
Only 5% of the clients who walk through our door do so before they separate.
Unfortunately, most people wait months and sometimes even years following separation to see a family lawyer and they do so often after a climactic event which has caused them either emotional or financial stress.
By proactively engaging an experienced family lawyer, you will receive the benefit of some invaluable advice and we can give you the tools to avoid a disaster in the first place.
Are you currently a party to a conflict ridden relationship and on the boarder of a separation with your ex partner? Are you scared to take the next step as you are not sure what to do or where to start if and when you decide to officially separate?
The way you conduct yourself in the lead up to and post separation is pivotal to getting the best result for you and your family, remaining amicable and avoiding lengthy and costly litigation with your ex partner.
Follow our useful tips and advice of what to do and what not to do before you separate to get the most out of your separation, reduce conflict and enhance the prospects of resolving any sticky issues amicably, quickly and cost effectively.
What to do and what not to do before you separate – Do’s
As it may not be possible for you to remain in/re-enter the family home after you have left, it is important that when you go you take all important items with you.
Frequently clients come to divorce lawyers wanting to sort out their divorce but the other party has a copy of their marriage certificate and their application for divorce is delayed because they need to apply to the Dpt of Births Deaths and Marriages to obtain a copy of it.
Take a copy of the marriage certificate when you separate so you can promptly arrange your divorce, 1 year after you separate.
2. Take a copy of the children’s passports and birth certificates
This will ensure that there is no risk that your former partner can take the children out of the country without your consent. See Child Support lawyers page for more info.
3. Take a copy of all financial documents
This is very important.
Financial documents are documents relating to the assets, liabilities and financial resources in your name and your former partner’s name. They include, for example, bank account statements (including personal accounts and mortgage statements), pay slips, tax returns, superannuation statements, share statements, credit card statements and the like.
One problem we often encounter when a client comes to see us is that they were kept in the dark about the finances and they do not have any financial documents so they do not understand their financial situation.
If you can provide us with a copy of all relevant financial documents or at least if you have a reasonable understanding of what the the assets, liabilities and financial resources are, it will give us a better idea of the property pool that exists and each parties financial situation which will enable us to give you more refined advice at the outset as to your property settlement entitlements.
If you do not take a copy of the financial documents with you and your ex partner digs their heels in and refuses to negotiate, it may be a lot more difficult if not impossible to access documents for assets and liabilities in the name of your former partner after you have left, without the commencement of a court action to force your former partner to the bargaining table and legally obligate them to provide you with a copy of his/her financial documents. Court proceedings are costly and we only recommend them as a last resort.
4. Take all the furniture and belongings you want with you
Do not leave anything behind you wish to keep.
Photo albums and other personal items are normally very contentious so we suggest that you take them with you when you leave. We recommend that you arrange for the removal of all furniture and personal belongings that you wish to take at the time you leave the former matrimonial home. If you do not take them at the time you leave, you may find yourself in a position where your former partner changes the locks and refuses to allow you to access these items at a later time or there may be a dispute later on about which items you are ‘allowed’ to take.
The other reason it is important to take as much with you as you can is because in a property settlement, furniture and household contents are attributed a value by the Court which is much less than replacement cost or the insured value. You may have your furniture and household contents insured for a significant amount, however, the Court values furniture and household contents in terms of how much it would all sell for if you put all your household contents out on your front lawn tomorrow and had a garage sale. ‘Garage sale’ value is generally significantly less than the insured/replacement value of your household contents.
It is therefore financially and emotionally beneficial for you to take as much as you can when you go rather than having to buy a whole house full of new furniture and being forced to barter with your ex partner to obtain a copy of the family photo albums.
5. If possible remain in the family home
You do not lose your right to a property settlement if you leave the family home, just your right to occupy the property (i.e. you cannot come and go in it as you please). It may be necessary for you to leave the family home if domestic violence is a factor and your former partner refuses to leave.
However, if possible, we suggest that you remain in the home, particularly in circumstances where you are not working and/or the children are living with you as it will be less disruptive for them and will reduce financial pressure associated with sourcing alternate accommodation, pending a property settlement taking place.
6. Develop an Action Plan
Write yourself an Agenda as to what you need to do if and when you separate and a strategy as to how and when you are going to do it. Think about things such as:
a. Where you are going to live;
b. How you are going to pay the rental bond and rent in advance;
c. Open up a bank account in your sole name;
d. Apply for Centrelink and child support;
e. Acquire some funds to support yourself and the children;
f. How you are going to protect your finances and your equitable interests
g. change your passwords;
h. change your will;
i. change your power of attorney;
j. change ownership of real estate.
We will talk more about the above in our subsequent article ‘What to do and what not to do after you separate’, to be released next week.
What to do and what not to do before you separate – Don’ts
The Dos are important. But the dont’s are even more important.
In order to minimise the possibility of conflict between the parties, along with lengthy and costly litigation, and/or to protect your safety and plan ahead for a possible court action we highly recommend you don’t do the following before or when you separate:
1. Don’t take the children out of the country/interstate without your ex partner’s knowledge or consent
This could lead to them filing a court application against you forcing the return of the children to Australia/Queensland.
Consider the importance of remaining amicable with your ex partner. You will need to communicate and cooperate with the other parent for many years to come with respect to issues concerning the children. Taking the children somewhere without the other party’s consent and breaching their trust, which is already marred by the breakdown of the relationship, will likely have a permanent negative impact on your post separation parenting relationship and your ability to cooperate and make decisions with one another in respect of your children.
2. Don’t discuss your intention to separate with other people before you discuss it with your ex partner
Doing this can also be considered a breach of trust and may impact the possibility of reconciliation or maintaining an amicable relationship post separation. You should where possible always discuss relationship issues with your partner before seeking to confide in and divulge private details of your relationship another person.
3. Don’t facebook post or publicise about your relationship issues
This can not only cause tension or miscommunications with your partner but it can have an impact on your relationships with significant others. You may also unintentionally be placing pressure on those closest to you by making them feel obligated to take a side in the dispute, which may impact their relationship with the opposing party they did not side with in the future.
Keeping your private issues private also avoids other people prying into your private life and making a judgement call about your situation where none is warranted.
Where possible avoid involving relatives and friends in the relationship conflict except where absolutely necessary to do so.
Try and talk to your partner privately about any issues you are having, or alternatively seek guidance from an independent third party such as a counselor or psychologist, and avoid airing your dirty laundry to the entirety of your facebook friends on social media.
4. Don’t stay silent.
If you are a victim of domestic violence or otherwise are suffering from emotional or psychological stress because of issues in your relationship, seek urgent help from an experienced counselor or psychologist.
Friends and family may have the best intentions for you but sometimes those intentions are misguided or they may have an agenda.
Speaking to someone independent is highly recommended in order to obtain an impartial perspective on your situation and help you come to a decision about whether or not the relationship is worth saving and what decision is in your best interests.
Read more at: Domestic Violence lawyer
5. Do not not call the police
Very often clients will come to us with war stories of unspeakable domestic violence that has been perpetrated on them. You may be surprised to know that the majority of the time, they did not call the police or report the domestic violence to an independent authority.
Consequently, we are left in the difficult position where the client has no independent evidence by way of a contemporaneous report to the police or the department, of the domestic violence they were exposed to.
If you are being exposed to domestic violence but you are not ready, willing and/or able to leave the relationship yet, you should always call the police, firstly and most importantly, to protect your safety, but secondly, to provide an independent and contemporaneous record of the incident should that incident ever be denied at a later date by the other party.
6. Do not not talk to the other party
This advice only applies if you are not being exposed to domestic violence. If you are being exposed to domestic violence you should contact a counselor or psychologist to seek independent advice and support.
If on the other hand you are simply in a situation where your relationship is on its last legs and you both know it, try where possible to talk over a plan of attack as to what will happen once you separate with respect to the living arrangements of your children and the division of your assets.
The more you can agree upon with your partner prior to separation, the less you will pay to negotiate with your respective lawyers.
You will save significant legal costs if you are able to reach an agreement directly your ex partner and it is just a matter of us drawing up the agreement for you.
If you are on the verge of separation but you are not sure where to start, contact us today to book an obligation free confidential discussion with our family law expert, Courtney Barton.
Be one of the 5% who come to us prior to separation. It is those people who we can help the most by giving them strategically advantageous advice to avoid a conflict in the first place.
Let us help you to move on with your life with the least possible financial, emotional and time costs.