If you’re planning for divorce and are concerned about the divorce process, we want to put your mind at ease. By preparing correctly, you can ensure that your divorce will proceed without any major issues. It’s important to understand your legal obligations, review your financial position, and take steps such as organising your bank account details and confirming any support arrangements through Services Australia. Here are our recommendations for what you can do to be ready for the separation and divorce process.
Key takeaways
Planning for divorce
All divorcing parties must be separated for at least one year, regardless of their circumstances. While this is only a temporary situation, planning for divorce during this period is essential. It’s important to make preparations to protect your legal and financial position throughout the separation.
Opening a separate bank account can help you manage your finances independently and reduce potential personal conflict. Being organised early on can also help streamline the legal process and avoid complications during divorce proceedings. Here are some things to consider.
Who will stay in the family home?
Your rights
There are various options when deciding on living arrangements. One crucial point to remember is that you have a legal right to stay in your home irrespective of ownership. Your name not being on the property title doesn’t affect your ability to remain in the home, as family law differs from property law in this way.
Seeking professional advice and engaging in careful planning can help you make informed decisions that consider your income protection and overall wellbeing. It’s also important to think about how these arrangements may affect other family members. Understanding your rights early on can prevent complications later, especially when formalising a divorce decree.
Mutual agreement
This is the ideal way to organise living arrangements. If one party can afford to find alternative accommodation and is willing to move out, that may be the best option. To avoid misunderstandings, it’s best to put this agreement in writing. A family lawyer can help ensure that proper arrangements are made in accordance with family law, especially if other assets are involved or if court proceedings are likely.
Separated under one roof
Sometimes, it isn’t feasible for one party to find another residence. If you’re on good terms, continuing to co-habit can work, provided the situation supports your emotional stability. Under Australian law, the Family Court will require clear evidence that you are living separate lives during this arrangement.
Planning for divorce involves more than just separating physically. It’s important to ensure that any shared finances or managed funds are handled appropriately and that each party is financially supported. Seeking guidance from a family lawyer experienced in family law can help you navigate this process and ensure compliance with legal requirements.
Leaving the home
Leaving the marital home won’t change your entitlements during the divorce settlement. If there are children of the marriage, finding a location close to them can make parenting and visiting arrangements easier and help maintain continuity in the children’s education and emotional wellbeing.
When planning for divorce, it’s also important to keep records such as lease documents to support your position if needed. Even if the marriage broke down due to conflict, minimising emotional distress for both you and the children should remain a priority throughout the process.
What about cases of domestic violence?
Some parties have family violence concerns. There is support available in these situations. The Court recognises that domestic violence can take different forms. It may involve social isolation or be of a sexual or financial nature. If you believe you’re in immediate danger, contact the police as soon as possible.
If you’re planning for divorce and your spouse refuses to leave the home, you may be able to apply to the Court for an exclusive occupancy order requiring them to relocate. Granting such an order depends on several factors, including the nature of the relationship between the spouses and the financial capacity of each party. This step can be important when planning for divorce to ensure a safe and manageable living arrangement during the separation process.
Finding the right family lawyer
Divorce lawyers provide critical assistance during the divorce process, especially for married couples navigating complex financial and parenting matters. It’s important to find the right family lawyer for your situation, particularly if issues such as the division of a primary residence, investment properties, or shared assets arise.
In more complicated cases, a forensic accountant may be needed to assess the true value of assets or investigate financial conduct by a former partner. Having experienced legal support can help ensure a fair and informed outcome.
Testimonials
Planning for divorce often involves choosing the right legal support. Feedback from past clients is one of the easiest ways to get a sense of a law firm’s quality. Online reviews can be helpful by highlighting consistent points of praise or criticism.
Recommendations from family and friends are often the most trusted sources. If you know someone who’s handled family law matters, ask them about their experiences if they’re happy to share.
Consultations
Many law firms offer an initial consultation for free or at a reduced rate. This is an excellent opportunity to meet with a family lawyer personally and get a sense of how they approach cases. Consider their communication style and professionalism. Prepare a list of questions beforehand to cover areas of concern.
What our clients say
Peter provides exceptional service, is understanding and compassionate. He made sure everything was explained, was open and honest and always had my best interests at the forefront.
I would recommend Peter to anyone needing a family lawyer.
- Sheree Anderson
We approach every client with compassion and understanding. We always work to find the best outcome for your case. We provide high-quality legal advice in easy-to-understand terms so you can make informed decisions.
Settling parenting and property matters
There are various ways to settle parenting and property matters. Consider which option is best for your circumstances.
Parenting arrangements
Co-parenting arrangements are a key consideration when planning for divorce. There are three main ways of organising co-parenting, each with different levels of shared responsibility and flexibility.
Parenting plan
Parenting plans are informal agreements. While they aren’t legally binding, they can be useful for parents who are on good terms. Here are some things to remember:
There’s always a risk that one party will challenge the agreement in the future. While parenting plans are taken into consideration by the Court, they don’t provide significant legal protection.
The plan should be as detailed as possible so there’s no ambiguity about each spouse’s parental responsibilities.
You can use the flexibility afforded by parenting plans to find creative solutions to co-parenting issues.
Parenting consent orders
Consent orders are the most common way of formalising parenting matters. We generally recommend them as the best solution because they prioritise collaboration. The Court will consider whether the order is in the child’s best interests before granting it.
Parenting orders
Turning to the Court to settle parenting disputes should be avoided if possible. However, in some cases it may be the only solution. Seeking legal advice is vital to ensure that you can make your case effectively. This may include receiving family reports and attending court hearings.
Property arrangements
As with parenting matters, a property settlement can be arranged in various ways. Property settlements cover all marital assets as well as spousal maintenance. However, they cannot arrange for child support, which must be addressed separately.
If you are unsure about your financial situation or entitlements, seeking legal advice from a qualified family lawyer or divorce lawyer can help ensure your interests are protected and that all aspects of your separation, including child support, are properly managed.
Binding financial agreements
A binding financial agreement (BFA) is legally enforceable but doesn’t require court intervention. Both parties must obtain independent legal advice before finalising the agreement. BFAs can be particularly useful for large and complex asset pools and may be appropriate when immediate financial advice or long-term financial planning is needed.
By not involving the Court, a BFA offers more flexibility than court orders. Consulting a family lawyer can help ensure the agreement reflects your financial situation accurately and protects your interests.
Property consent orders
We recommend consent orders for most people. The Court applies the same four-step process to all property orders. The focus is on finding the fairest and most equitable division. This makes the process predictable. This enables you to have certainty about your financial situation after divorce. Consent orders are also generally the most cost-effective option.
Property orders
Parties can settle financial disputes through court litigation. Litigants must make a genuine effort to resolve their conflicts through mediation before appealing to the Court. A law firm such as Andrews Family Lawyers can help you get the most out of mediation to avoid litigation costs. We can also assist you with building your case and achieving the best result.
Gather necessary documentation
Family law matters can involve a lot of documentation. Ensuring you have the necessary paperwork ready will help smooth the divorce process and may assist in managing legal fees more effectively. A family lawyer can guide you through the legal requirements and help ensure all relevant documents—particularly those relating to your financial situation and major assets—are in order.
Consulting financial advisers can also provide clarity and support when dealing with complex financial matters. Here are some of the most important documents you’ll need.
Marriage certificate
You’ll need a copy of your certificate to apply for divorce. If you need a replacement, you can order one from the Registry of Births, Deaths and Marriages. If the certificate is in a foreign language, have it translated by a NAATI accredited translator.
Financial documents
You must fully disclose your financial circumstances during a property settlement process. A family lawyer can help you gather all your documents and ensure the other party meets their obligations. Financial documents may include:
Bank statements
Stock portfolios
Business records
Mortgage documents
Debt records.
Will and testament
A divorce automatically revokes any bequests made to your former spouse in your will. However, your will remains unchanged during separation.
Consider revisiting your will sooner rather than later, particularly if you’re entering a property settlement before divorce. If your former partner is listed as your power of attorney, consider changing that arrangement as well.
Affidavits
You may need to include certain affidavits in support of your divorce application. An example would be affidavits explaining a ‘separation under one roof’.
If you’re a sole applicant, you must complete an affidavit acknowledging that you’ve successfully served your spouse.
Certificates
You may be required to submit certificates other than your marriage certificate as part of the separation process. A financial adviser can also help you organise your financial resources to ensure you’re fully prepared for any financial disclosures or obligations that may arise. These can include:
A counselling certificate for couples that were married for less than two years.
A genuine steps certificate showing that you completed mandatory mediation or family dispute resolution.
Conclusion
When planning for divorce, the right preparation can help you complete the process with minimal hassle. During your separation process, consider parenting and property matters, joint accounts, and connect with the right family lawyer to ensure everything is handled properly.
A family lawyer can advise you on any pre-application requirements, such as proper documentation, helping to prevent delays in your divorce order. It’s also wise to consult a financial adviser to support your financial security and ensure you’re making informed decisions throughout the process.
