If you’ve recently separated, it’s important to remember that this is a phase in your life that will eventually pass. Most people are understandably very emotional during their separation, and also during the legal process of dividing assets and organizing parenting arrangements.
Emotions can more often than not lead to poor decisions, so we thought we’d share our top 6 ‘dos and don’ts’ to help people navigate through this phase of their life.
Recently Separated? Do:
- Be respectful to each other. You’ve shared a life together, probably built up your assets together and may have children together. Respect each other and for your respective contributions to your family dynamic and asset pool that you have today, means you will probably find the process much less emotional and hostile. It may even assist in keeping your legal fees low.
- Gather documents and information. Have a think about any property you brought into the relationship/marriage, what you had at separation, and what you have today. Prepare a rough balance sheet of your combined assets, liabilities and superannuation. Gather documents such as your last 3 tax returns, bank statements, superannuation statements and details of any investments and liabilities you have. If you have access to your spouse’s documents, you should collate these too. Gathering documentation and identifying the property pool can sometimes result in significant legal fees, so any help you can give to your lawyer will assist.
- Draw emotional support from friends, or a counsellor if necessary. It is not abnormal to find the separation process emotionally and mentally challenging. We strongly recommend surrounding yourself with a group of people upon whom you can draw support when necessary.
- Get advice from professionals and avoid Googling. Don’t try to cut costs by going it alone, as you will probably either give up rights or entitlements, or you may end up with unrealistic expectations of what you are entitled to. We recommend speaking with a family lawyer and possibly an accountant to start with. Knowledge is power.
- Further to the above point, talk to a lawyer as soon as the separation has occurred. You may not act on the advice straight away, but at least you have a picture of where things are at, what your entitlement may be, and what needs to happen next. You may also avoid making mistakes that could cost you when it comes time to have a property settlement or if parenting issues are in dispute.
- Extra tip: Change your email, banking, social media, myGov, and other passwords. If your former partner knows these passwords, they can access your confidential financial information at any time and perhaps transact on your accounts or access confidential legal advice that may have been emailed to you by your lawyer.
Recently Separated? Don’t:
- Draw the kids into the conflict. Invariably, discussions you may have with your kids about the other parent – including blaming the other parent for the separation, discussing legal proceedings, or how much time you want to have with them – usually make their way into an Affidavit that will be read by a Judge at some point. Especially if you have sent text messages or emails denigrating the other parent. Aside from disadvantaging you in any legal proceedings, it is not appropriate for the children to be drawn into adult conflict, and may cause irreversible emotional or psychological damage.
- Air your dirty laundry on social media. Separation is not the time to publicly put down your former partner. It will add to the hostility and may cause entrenched positions which are not malleable to settlement negotiations (costing everyone more money). Moreover, you could inadvertently waive your legal professional privilege or give some strategy away.
- Take legal advice from friends. Your friend’s experience with the family law system will not be your experience. This is because the Family Law Act 1975 (Cth) and caselaw, provide for a great deal of discretion for Judges to apply when considering cases. Every case is determined on its own unique set of facts and circumstances, which means your entitlement is unlikely to mirror your friend’s entitlement. Use your friends for emotional support, not legal advice.
- In most cases, it is not encouraged to unilaterally sell off assets without the other party’s consent, or without at least giving them notice. The Court can notionally add back that property to the party who sold it, if the Court considers the sale was made to defeat the other party’s claim or if the proceeds were spent on legal fees or some other disingenuous reason. In some matters it may be necessary to sell assets, however this is dependent on the specific circumstances of each case and the reason for the sale and application of the sale proceeds.
- Make any rash decisions. It is almost always advisable to maintain the ‘status quo’ when it comes to interim financial matters; keep doing things as normal. If you cut off the other party’s access to finances, it will almost certainly be met with hostility, and a costly spousal maintenance application.
- Abuse your ex in writing (emails/text messages etc). Whilst we suggest not abusing your ex at all, when you send an abusive text or email, this serves as a record of that conversation. This is especially important as it may end up being annexed to an Affidavit, or used as the basis for your ex to apply for a Domestic Violence Order against you. Take that extra time to think ‘will this communication help or not’?
If you need some practical, pragmatic advice on your recent separation, feel free to call one of our Family Lawyers.
MBA’s Family Law division is headed by partner Joelene Seaton, a Queensland Law Society Accredited Specialist in Family Law.