7 STEPS TO PREPARE FOR SEPARATION
by Richard Mahler (Family Lawyer & Accredited Family Law Specialist)
If you’re facing separation, prepare now so that you can be proactive rather than reactive. Empower yourself to effectively respond to the changing relationship with your partner. Below are 7 steps to be better prepared for separation.
Step 1 – Try relationship counselling first
You should do everything you can to be sure that separation is necessary. While sometimes it is, it isn’t always the answer. Part of this is relationship counselling. Even if you and your partner have gone down this track before, you should be absolutely certain that there are irreconcilable differences between you. Separated couples often find themselves in a ‘world of hurt’ after separation, emotionally and financially crippled. If children are involved, your life will never be the same again as you and your separated partner will be parents together for the rest of your lives. Yes, you read that part right; not just until the children are 18 - but for their graduations, marriages, children, etc. Separation is not the ‘one-stop-shop’ to fixing relationship problems. Therefore, you should ensure you’ve given relationship counselling a real go.
Step 2 – Get a great personal counsellor
If you do ultimately separate, make sure you have a great counsellor for you personally. Separation is usually a traumatic experience. To compound the problem, you need to make some critical decisions that may affect you profoundly for the rest of your life. This can at times be a toxic combination, where you’re making big decisions while not in a good frame of mind. It’s therefore really important that you have support from a person trained in the social sciences to be able to help you. A good counsellor or psychologist is an essential support for anyone going through separation. You’ll then be much better equipped to deal with the thoughts and emotions that you may have as you navigate through this difficult time in your life.
It’s also a good idea that your counsellor be someone other than your relationship counsellor, to ensure they’re not in a conflict of interest situation where things have the potential to become uncomfortable and they can’t effectively work with you because of the confidential information they’ve received from your partner that they’re not at liberty to discuss (either directly or indirectly) with you.
Step 3 – Copy all of your financial documents and video your household contents
Wait for a time when you’re confident your partner won’t be returning to the house for the best part of a day (or if you don’t have that luxury, you may need to break this process down into bite-sized chunks). Systematically go through every room of your house and video all of your assets (including small items hidden away, such as jewellery, etc) while detailing what you are filming. Also include your cars, boats, motorbikes, etc.
At the same time, take photos of all of the financial documents you can find. Things to look out for include (but are not limited to): bank statements over the last 12 months, superannuation statements, tax returns, shareholder certificates, mortgage documents, Centrelink statements, and payslips. This information is an invaluable resource in negotiating a property settlement down the track, particularly if your partner is not forthcoming with the necessary financial disclosure. If you’re not sure if it’s relevant, copy it anyway. It’s better to have too much information than not enough.
You then need to keep this video and photo information in a safe place. If it’s digital, then copy it onto a usb or disk and remove the originals from your camera or phone. Place the usb or disk with a third party such as your family lawyer or a friend (don’t leave them in a “safe” place in the house or at work, as they may be found by someone you didn’t want to find them).
After separation, it can be really easy to forget exactly what assets you held at the time of separation, which can have large ramifications for your property settlement. Even if you’re saying to yourself that you don’t care about that stuff and your partner can have it all, it can be a good ‘ace up your sleeve’ in terms of negotiating down the track for the things that do really matter to you.
Step 4 – Don’t move out of the house (yet)
It’s best that you do everything you can to stay in the home until you have obtained legal advice (see Step 7). Moving out may prejudice you in terms of being the children’s primary carer. Moving out may also prejudice you in terms of having to pay spousal maintenance (or being able to receive spousal maintenance). Spousal maintenance is where one party pays the other party an amount of money each month to cover expenses such as mortgage payments, school fees etc. Spousal maintenance normally continues until a final property settlement.
Of course, if your partner becomes violent, then you should definitely do whatever is necessary to protect yourself and your children, even if that means moving out of the house. If this is not the case, then one option is to separate while under the same roof. Thus, you and partner could sleep in separate rooms and thus give effect to a separation without either party having to move out of the house in the short to medium term.
Step 5 – Put some cash aside and open a private bank account
Now is the best time for you put aside some cash for a rainy day. You may not have access to these funds in the near future, so it’s a really good idea to get onto this straight away. Otherwise, you may find that accounts have been closed or frozen before you’ve had a chance to get your own cash reserve in place. If there are no cash savings in place, you should see whether you can get access to a drawdown on your mortgage, overdraft facility or a cash advance on a joint credit card. The money may be needed to pay urgent bills, pay for accommodation at short notice, etc.
You should also open a private bank account. While this will need to be disclosed to you separated partner at a later point, it will be highly useful in the short to medium term. You can put your cash reserves in there, giving you the peace of mind that it won’t be lost, stolen, or withdrawn by your partner.
Step 6 – Get a title search of your property
Another important step is to obtain a title search of any property held by you or your partner. This allows you to take the necessary steps to protect your property from being sold without your knowledge. You can do this through your family lawyer (see Step 7) or by dealing directly with the Titles Office. This way, you can ascertain what (if any) legal title you hold in the property.
If your name is on the title to any property, a title search will also tell you whether you hold the property in your sole name or jointly with your partner. If you hold it jointly, the title search will also tell you whether you hold it as “joint tenants” or “tenants in common”. This is an important distinction, for if you hold it as “joint tenants” you can arrange with your family lawyer to have the interest severed so that you hold it as “tenants in common”. This means that if you should pass away before a property settlement, then your half interest in the property will become part of your estate as opposed to automatically transferring to your separated partner.
If you discover that your name is not on the title to any property, your partner can sell it from under you nose. You can then became embroiled on a wild goose chase to try to get your rightful property settlement. If you discover early that your name isn’t on the title to your property, you can discuss with your family lawyer a strategy to overcome this obstacle. You may need a court order for an injunction to prevent your partner from dealing with the property without your knowledge, and ensuring the sale proceeds are put aside on behalf of both parties.
Step 7 – Get legal advice from a specialist family lawyer
It’s essential that if you’re contemplating separation, that you get some advice from a lawyer specialising in family law. That way, you move forward, empowered by knowing your rights and responsibilities.
Ideally, the lawyer should be an Accredited Family Law Specialist. You can contact the Law Society in your state to get a referral to some Accredited Family Law Specialists in your area. Getting the right advice early is critical. You may not even be convinced that separation will definitely occur, or that you want to retain a lawyer during the separation process, however being advised of how the law applies to your specific circumstances puts you in a much stronger position. Also, you can prevent making strategic mistakes that may prejudice the outcome for you in terms of parenting arrangements or a property settlement.
While there will be many other matters to attend to during this time, by following these 7 steps you will be far better prepared for separation.
If you would like to obtain family law advice specific to your personal circumstances, please contact me on: richard.mahler@mahlerfamilylaw.com or (07) 4638 0811.
Best of luck in the journey that lies ahead.
Disclaimer: This is an opinion piece, and is Family Law information, not to be taken as Family Law advice.
