Property & Family Law
Post Separation Financial Disputes
If you have separated from either a marriage or de facto relationship, at some point you need to think about dividing up the asset pool. At Carter Dickens Lawyers we can assist you with every step of the way.
The first important step to resolving a property dispute is to make sure you have realistic and legally accurate advice about what to expect. You also need a “game plan” to allow you to progress the dispute to a resolution. This is where an experienced lawyer can help. Even if you self-represent during your negotiations it is always best to know where you stand.
This is because relying on the advice of family or friends can actually end up being quite harmful and expensive. This is because some tend to focus on what they consider to be morally appropriate from their point of view rather than looking at the dispute through the lens of the law. Also, friends and loved ones often want to tell you what you want to hear because they know you are going through a difficult time.
While we all want to settle our disputes in terms of what we consider to be morally right, we need to negotiate in the common language and considerations of the Family Court’s process to reach a just and equitable division of assets. Because if you cannot reach an agreement then the court will end up deciding.
It can be difficult to reach an agreement about how to divide up the relationship assets because there are often many relevant facts, both disputed and agreed, and many considerations to take into account.
Therefore your primary job in working towards an agreement is to narrow the scope of the disagreement. This means you need to list all of the relevant considerations and figure out what is agreed and what isn’t. For example, it is not wise to attempt a costly and stressful mediation until certain work has been done. This includes identifying the assets, liabilities, financial resources and superannuation, and then coming to an agreement on the value of all of those items.
Some items are easy to value such as bank account balances, shares, credit card debts, mortgages. However some items are difficult to value such as real estate, businesses or collectables. This is further complicated by the fact that depending on who is looking to retain a particular asset, one party will want a high value while the other party wants it to be low. For example, if you are retaining a house as part of the agreement, then you would want that value to be as low as possible so you have to pay out your ex-spouse less money in the settlement. Of course, your ex would want the value to be high so they get paid out more. This is why not having agreed values prior to mediation can prevent settlement being reached.
This is where a skilled lawyer can help. They can identify and speed-up all of the work that the parties need to complete before mediation, or offers to settle can be exchanged. Your lawyer will frame the dispute carefully and also put you in an advantageous position prior to the mediation. For example, a lawyer will advise you that if you cannot agree on the value of the family home that you should obtain an independent valuation prior to the mediation so that you do not prevent a settlement being reached.
It may also be worth considering having a lawyer present with you at the mediation. A lawyer will be able to argue the merits of your case. If the other party has a lawyer and you don’t you can easily be blind-sided and it can feel like the mediation is about the other party’s point of view.
When it is time for mediation, the only issues that are not agreed should be how to divide up the asset pool, and not the values of the assets. If you reach this point and you still cannot agree then your lawyer can help you assess your options going forward.
At Carter Dickens Lawyers, it is our goal to reduce the conflict in matters as they continue. This is done by carefully keeping track of all the facts and pushing the parties to incrementally come to an agreement on the outstanding issues. Please contact us if you believe we can help you reach your goals in resolving a Family Law Property Dispute.