7 Step Separation Checklist
If you are contemplating separation or divorce in the near future, there’s certain things you should do now just in case.
What to do
In our experience, long term relationships rarely break down overnight. Separating from your partner is a difficult decision to make, and many of our clients only made this decision after months, if not years, of consideration. If your relationship or marriage is in trouble, and there is a real possibility it will soon end, there are some things that you can do now (before separation) to prepare. These are things that you can do now, just in case, without having to make the difficult decision to leave. These are simple, basic steps that many of our clients (who have come to us after separation) wished they’d known beforehand.
If you don’t follow these basic steps, you could be left vulnerable and you might lose the opportunity for a fair settlement under family law proceedings. You may also end up having limited time with your children under family law parenting arrangements.
1. Give yourself financial security
Before separating, make sure you have access to the resources needed to support yourself and your children. If you and your partner only have a joint account, make sure you open your own account and have funds set aside. How much you’ll need depends on your circumstances. If you think you’ll need to move out of the matrimonial home upon separation, make sure you have enough for a bond and at least the first month’s rent as well as enough for groceries and living expenses. If you don’t have your own income, you may need to make sure you have sufficient funds to support yourself and your family for at least 6 months if you have to, if you think your spouse will try to cut you off from shared assets.
Don’t assume that your spouse will agree to moving out. Unfortunately, we have had many clients whose partners simply refused to leave the home, forcing our clients to either stay in an unsafe and unstable environment, or leave the home themselves. One client came to Shorestone Legal after being forced to “live rough” with two children, because an abusive ex-partner refused to give up the home. In another case, a father who was forced out of the former home into unsatisfactory accommodation was then denied access to any furniture or personal belongings. His ex-wife then used his lack of accommodation as an excuse to limit his time with the children.
Unfortunately, many people mistakenly believe that moving out of the family home means you’ll lose your share of its value in the settlement. This is not true. Who ultimately retains the family home after separation, or if it needs to be sold, is very rarely affected by who is still physically living in the home and who has moved out. There is also case authority that whoever retains the family home will be responsible for paying the mortgage and maintaining it.
Of course it can be advantageous to stay in the home if the outgoings are nominal (for example the mortgage has been paid off), or to minimise disruption for your children.
If you don’t have your own income, or if you and your partner operate a small business, make sure your partner cannot sabotage the business (for example by stealing or destroying your financial records, locking you out of business accounts, or deleting important business records).
2. Reset your passwords
Change your passwords. Not just for your online banking, but for your computers, devices, email accounts, and social media accounts such as Facebook.
In most households, computers and smart devices are shared around regularly. To make life easier, most of them allow passwords to be automatically stored. This means that your partner may also be able to easily and conveniently access your private communications.
3. List all your assets and liabilities
Prepare a list of all assets and liabilities, including those of your spouse. Make sure the list includes both parties’ superannuation balances, and whether the super is “defined benefit” or “accumulation.” Your lawyer can explain these terms, and discuss the types of valuations for superannuation of assets with you in detail).
Often, it is much easier to prepare a proper summary of both parties’ assets and liabilities while you’re both still living in the matrimonial home, and financial records are still easily available to you. If there’s an asset you’re not sure about, or don’t know its value, take a copy of any documents you have that relate to that asset to show your lawyer.
Once you leave, you probably won’t get the chance to go through the home or review shared financial records again.
4. Copy important documents
Make sure you have copies of any important documents, including your family’s financial records, bank details, both parties’ superannuation statements, marriage certificate, birth certificate, and passports. It is not necessary to take these documents unless you believe your spouse may destroy them. By taking these documents away, you run the risk of undermining your spouse’s trust and thereby running up both parties’ legal costs.
Bank records for at least the last 2 years are a good idea, especially if the accounts are in your partner’s name.
You should also copy whatever evidence you have of your partner’s income, or (if your partner no longer works, for example to stay at home and look after the children) what their previous earning capacity was.
5. Get legal advice
A good family lawyer should be prepared to give you confidential, no-strings-attached advice about your options and how best to ensure you and your ex-partner can end your relationship fairly and without risk to you or your children, if you ultimately do decide to end your relationship. Your lawyer will also be able to help you understand what documents you should copy and keep safe, if you’re not sure. The more information you can give your lawyer, including details of superannuation and other assets and liabilities, the more comprehensive their advice can be.
You can find more information about what might be a fair property settlement under Family Law rules, in our articles here and here.
6. Talk it out
Lastly, and if it is safe for you and your children to do so and once you’ve followed the steps above, we strongly advise our clients to sit down and talk to their spouses before walking out the door (or asking their spouses to leave). If you and your partner can keep things amicable, and talk through what you both want with a forgiving and level head, you’ll both significantly reduce legal fees and keep parenting arrangements in place that are best for your children.
Family law property settlements shouldn’t come down to a simplistic mathematical formula, or an argument over what 50% means. At Shorestone Legal, for example, we get that people’s lives get complicated after many years of partnership. A big part of getting a successful settlement outcome is keeping the assets you want, dividing things in such a way that will make life easier for both you and your partner as well as for your children (and not according to some arbitrary spreadsheet of values and debts), and being on the same page when it comes to parenting arrangements at least in the short term. A lawyer can help you get that outcome, but you and your partner can narrow the issues in dispute as much as possible yourself.
7. Take it with you
Before ending your relationship, make sure you have somewhere safe to go to if it turns ugly. If you are a victim of domestic violence, or are genuinely fearful of your partner, seek help immediately from the police or from an appropriately experienced family lawyer such as Shorestone Legal. Immediate assistance, including counselling or emergency shelter, can be provided by the police, your local community neighbourhood centre, or by Services Australia (ring 1800 RESPECT). We can also put you in touch with help in your local area if you need it.
If you do leave the home, and it is not amicable, get further legal advice immediately and make sure you take your most valuable and prized possessions with you if you can. We have seen unfortunate cases where partners have left the matrimonial home with promises of being able to return to collect their sports memorabilia, childhood photographs and heirlooms, only to later discover their ex has sold or thrown away these items out of spite.
What not to do
We also strongly advise our clients against employing any of the following tactics leading up to separation or divorce.
Don’t be a bully
Don’t cut your ex-partner off financially, and try to force a settlement on your own terms. This will probably only result in your ex-partner being forced to immediately start legal proceedings against you, rather than the parties being able to settle their affairs amicably. There are options available to your partner if you try to do this, and it is likely to run up both parties’ legal fees without need. Your partner may be able to access legal advice from a community service, or in most situations may be able to engage a family lawyer who will defer their fees. Shorestone Legal also offers this service to our clients if needed.
If your ex-partner uses these types of manipulative tactics, or tries to force you into a “take it or leave it” settlement agreement some other way, get legal advice immediately. Your lawyer can be your shield against such tactics.
Don’t make the children choose
Don’t try to turn your children against your ex-partner. Children should never become pawns in family law matters. To do so will inevitably cause your children serious psychological and emotional damage, from which they may never recover. While you and your ex-partner may not be able to agree on anything, it is important that both parents ensure children know they are loved and don’t have to take sides. It is important that the children are allowed to maintain a significant and meaningful relationship with both parents, if it is safe for the children to do so.
You will find more information about working out what’s best for the children here.
Don’t cry wolf
Occasionally, we have come across provably false claims of domestic violence or abuse made in an attempt to discredit an ex-partner. Such tactics almost always significantly delay family law separation agreements, and significantly add to both parties’ legal costs. False allegations can also destroy any possibility of a peaceful resolution.
If someone makes a false allegation of abuse towards children, but ultimately agrees to their ex-partner spending significant time with the children, the Court will inevitably draw the conclusion that the allegations were simply a ploy.
Domestic violence is unfortunately a serious problem in every community. If you are the victim of domestic violence, there are options for you and your family which we’ve set out in detail above. Many instances of domestic violence happen “behind closed doors” and are therefore very difficult to prove to the Court. If you are a victim of domestic violence, even if the violence is going to be hard to prove, you should get legal advice immediately. Sometimes, even if an application is ultimately unsuccessful, the process of applying for an order may hopefully be enough to encourage the perpetrator to get the counselling and professional assistance they need, or to stop their abusive behaviours.
For more information about domestic violence and separation, go here.
Don’t try to hide the silverware
Don’t sell off, hide, or destroy significant assets. A good family lawyer will be able to trace missing assets and, if matrimonial assets have been wasted, the wasteful party may be forced to wear the cost. Such action may also mean contested Court proceedings are inevitable, which will significantly add to both parties’ legal costs. Under the Family Law Act, the Family Court has the power to award costs against a party to proceedings depending upon their conduct.
Don’t give up
Last, but not least, don’t give up. Talking to a lawyer doesn’t mean you have to leave your partner. As well as helping you understand the full implications of your position, and the options available to you, your lawyer can put you in touch with a number of counselling services which can help you and your partner save the relationship. If separation is a real possibility, then It is important that you get proper legal advice from a suitably experienced family lawyer as soon as possible. Hopefully, by following these basic steps, you’ll also significantly reduce your family law expenses in the long run.
If you are contemplating divorce or separation, contact Shorestone Legal via email or on (07) 3266 4657 to set up a free, confidential discussion about your options. It doesn’t cost you anything to know where you stand.
About the Author
Aaron Ball is a family law practicing in the areas of parenting matters, property disputes, divorce, and wills and estates. Aaron also has significant experience working in the Queensland Magistrates Court jurisdiction in the areas of criminal law and domestic violence. More information about Aaron can be found here.
