Divorce Settlements: A Brief Overview

General

You would certainly need a lawyer if you are negotiating a divorce settlement agreement if you are divorcing or separating from your spouse. This is actually a process of coming to an agreement about property and finances (and everything else) without resorting to litigation.

This is to enable both parties (the husband and wife) to achieve a fair result after navigating legally in the process of dividing joint assets (all the marital properties) of the divorcing couples. The absence of litigation makes the negotiations considerably lighter.

If you are negotiating a property settlement agreement, our Brisbane team will help you navigate legally dividing your joint assets when you are divorcing or separating. At an emotionally difficult time, coming to an arrangement about property and finances without resorting to litigation can lighten the load considerably.

Property settlement

Although divorce and divorce settlement are intertwined, divorce is actually the legal termination of a marriage, nothing more. Divorce does not have provisions for the division of assets and liabilities or the care of the children, for instance.

This is the reason why separate agreements should be made between you and your spouse about who gets what when the divorce is finalized. The settlement can be formalized with either a binding financial agreement or a consent order.

Inclusions

Aside from the couple’s assets, it also includes liabilities like debts, taxes, and stamp duties. It includes properties acquired before the relationship started and after the couple separated.

Anything of value can be included in the agreement, like properties (owned jointly or independently), cars, trusts, business interests, money, jewelry, and even animals.

An additional note is that the couple can begin discussing these matters as soon as they separate. This is to give time for both to work toward a collaborative divorce and try to resolve matters without going to court.

There are four things that are looked into when determining the appropriation division of property during a divorce.

Agreeing on the value of assets and debts

The combined pool includes anything of value like houses, cars, shares, jewelry and mortgages, loans, credit cards, tax implications, and others. If one of the parties spent money on gifts for a third party, or gambling debts, are added back to the pool of assets.

Make sure that you have everything covered in your property settlement agreement with your lawyers because they know what to look out for.

Identifying each party’s contributions

Contributions include both financial and non-financial contributions. For a spouse to stay home and raise the children, their capacity to earn income and their contribution are limited.

These non-financial contributions are taken into account. The party is considered to have a contribution even if their input (contribution) is not financial.

Assessing future divorce needs / fair outcome

The influences of the division of assets can be harnessed in how the couple will support themselves when their marriage ends.

Hence, factors like age, income, physical and mental capacity for employment, pension eligibility, childcare, financial commitments, and standard of living are some of the considerations.

There is no truth to the misconception that matrimonial assets are split (50/50) after taking into consideration the preceding three points. The court will always make a judgment whatever it considers to be fair and equitable.

It is a misconception that matrimonial assets are split 50/50 and after taking into consideration the preceding 3 points, a court will make a judgment on what it considers to be fair and equitable.

Legally binding

Going to court is time-consuming, expensive, and can drain one. The best policy is to avoid it and move on separately without going into litigation.

Once an agreement is reached, it is a good idea to have the agreement legally binding to provide finality and certainty.  This also protects the assets acquired after the separation, including any capital gains tax advantages.

Consent orders

These are financial orders based on the agreement made between the parties, or after a court hearing.

The binding financial agreement can be made before, during, or after a relationship ends. This sets out how the couple’s assets are going to be divided should their relations break down. Both parties to the agreement must have their own lawyers acting for them.

If the couple is not yet divorced, there is no time limit on when one can begin the property proceedings. However, if the couple is already divorced, they only have a year (12 months) to begin the proceedings.

Brisbane divorce settlements may not always be possible in all cases. But there are several benefits to considering your case before the judge.

Peace of mind

One of the biggest, if not the biggest, advantage one makes in divorce settlements is your own peace of mind. Being able to settle your divorce without litigation is one big clue about where your case is going.

You will have control of what does and does not go into your agreement. On the other hand, if you are unable to settle your divorce, you will proceed to litigation and a final hearing with a judge.

Savings

Going into litigation, you will always need to keep your costs down in your mind’s preparation. Litigation is often the most expensive aspect of divorce and you need all the preparations for it.

It is important that you know the weight of the costs and the risks of litigation when you are deciding to proceed with your case with the judge.

Matter of principle

In many cases, people take their case to Court simply as a matter of principle. It is very important to know the factors that can cause the court to favor your side. However, you need to see the hard facts of your case and the practical side of it.

If you will spend more in attorney’s fees than the cost of the actual items you are disputing, you are much better off in settling outside the court. Nothing annoys judges more than petty issues brought before them and compel them to spend time on it.

In the end, the unique facts of your case are the only determinants of whether settlement or litigation is the best course of action for you. Settlements can provide a welcome relief for you during stressful times that your life is in.

Pertinent notes

You have many reasons to settle your issues in your contested divorce case. When your settlement negotiations are concluded, the negotiations are practically over. There will be no more back-and-forth moves over numbers and other issues.

Almost all judges will declare that if you cannot decide on your own with your former spouse, they will. By doing so, you will empower a complete stranger to decide an important part of your life.

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