It’s Not About the DivorceKoffels
Many people still hold traditional concepts about getting a divorce, but today it is no longer based on finding fault, or apportioning blame to one party or another. It is simply about the irrevocable breakdown of the relationship. The relationship does not have to be one of a traditional marriage, it can be a long standing defacto relationship where the finances and interdependencies are blended between the parties. These parties do not get a “divorce”, but they too need to confront the end of the relationship, and the subsequent division of property. Therefore it’s not all about the divorce.
So if it’s not about divorce, what is it about? In essence, applying to the Court for a divorce is the easiest part of the process, it is a legal formality. The complication comes with how one then deals with the issues of custody of children, parenting of children, perhaps maintenance of a spouse, and then the equitable distribution of assets between the parties. It is notable too, that you do not need to be divorced to be able to deal with these issues of property and parenting. You can deal with these issues first, and then divorce at a later date. If however, you do divorce, you must then formally resolve your property matters within 12 months of the divorce. This is a legal requirement. It is also worth understanding that the financial status of the parties for the division of property, is that which is current at the time of the your Court Hearing when your settlement will be approved, or determined in the event of dispute.
It is your lawyer who can help you to resolve these issues and prepare the necessary paperwork setting out the terms such as for; a parenting plan, a child support agreement, and a negotiated financial agreement.
With regards to a financial agreement, any number of factors can come into play when determining the terms between the parties such as: children of the relationship, other dependants, financial status of one party to another, the financial contributions of the parties, and also the support provided to a bread winner by say, a stay at home parent, facilitating the ability to earn income by another. There can also be contributing factors of what each party brought to the relationship at the time of their becoming a couple, and the capacity of parties to be self-supporting going forward.
In some instances, one or both parties may have signed financial agreements before being married or moving in with each other. Commonly referred to as pre-nuptial agreements, these may or may not be adequate in the ultimate demise of the relationship. Many do not necessarily hold up under today’s Court judgements, so one should never dismiss out of hand, the concept of disputing such an agreement. They may indeed hold, or they may be invalid.
The truth is that as with most things, every situation is unique and needs to be viewed as such. It is always good to seek out sound advice from professionals with not just technical ability in Family Law, but with sophisticated Commercial experience in the negotiation of terms. The basics of Family Law are relatively structured and clear in its’ practice. The real issues come down to sound financial and contractual analysis, to be able to decide what is the true asset and how to divide it amongst the parties. If children are involved, it’s even more important to have an advocate who will ensure your child’s interests are put first. Professional advice helps to ensure you are best represented regarding child support, and how you and your counterpart will move forward in navigating future parenting from two different households.
The lesson is: don’t assume that your position is clear, as this is rarely the case. Seek professional advice and a strong advocate that will fight for your rights under the law. This is what will create the foundation for your new life now, and into the future.