If you have recently separated, one of the concerns you will probably have is the size of your legal bill after your property matters are sorted.
Below are our top tips for keeping your family law property costs down without skimping on sound legal advice.
Tip 1 – Do some groundwork yourself
A specific process is used when negotiating a property settlement. The first step is to identify the parties’ assets, liabilities and financial resources. This information is critical to determine the division of your property.
Compiling your financial information early in your matter and presenting it in an organised fashion has many benefits. It can be used at any stage – from negotiations, during dispute resolution, such as through Collaborative family law practice, and if necessary, for Court proceedings. As well as having a snapshot of your asset pool to assist in negotiations, you will likely save on costs associated with others having to arrange the information on your behalf.
Assets
When listing assets include their approximate value. Most local agents will provide a written market appraisal for real estate at no cost. For motor vehicles, you can visit www.redbook.com.au and obtain a printout of private sale figures for particular models.
Remember to include all assets – those that are jointly and individually held as well as those that are held with a third party. Assets comprise real estate, motor vehicles, furniture, art, antiques and collectables, shares, investments, superannuation, cash and business interests.
Liabilities
When listing liabilities include mortgages, loans, overdraft facilities, credit cards and tax debts.
Financial Resources
Financial resources are sources of financial support that are readily available to a person, such as an asset that can be used for generating income or an interest in a discretionary trust. Be sure to include salary or wages, and income from other sources such as rental properties, dividends, business and company interests.
Bank statements, share information and superannuation statements can easily be downloaded from the internet. If relevant, financial returns for companies or partnerships should also be included and, if possible, the last three years’ tax returns for each party.
Tip 2 – Don’t avoid or put off getting legal advice
The sooner you know your rights the better.
Many separating couples attempt to finalise their own property settlement or avoid settling their financial matters altogether. This is dangerous for several reasons. Failing to close joint accounts or to transfer assets is messy, leaves the parties vulnerable to future claims and makes it difficult for them to move on.
Do It Yourself property agreements, made in the absence of legal advice, often contain ambiguous provisions and are unenforceable. Without a complying Financial Agreement or Consent Orders (see below) parties are generally unable to access important stamp duty and tax concessions when it comes to transferring real estate from one to the other.
No two family law matters are the same. Investing in an initial interview with a family lawyer can provide guidance as to a likely settlement outcome and a basis from which to start negotiations. You can also discuss the different pathways available for resolving your dispute, including those that don’t involve court, such as via Collaborative family law.
Your lawyer can recommend any urgent measures you may need to take to protect property, advise you of your legal rights generally, and discuss the implications of a likely settlement. Your lawyer can also explain the impact that your separation has on your Will and provide guidance on reviewing your estate plan.
Money spent early after separation on sound legal advice can return significant savings down the track.
Tip 3 – If possible, avoid going to Court
Generally, Court proceedings should only be an option of last resort – when urgent orders are critical, the matter involves domestic family violence, or when one or both parties suffer from a personality disorder or severe substance abuse, and a settlement is impossible.
Court proceedings exhaust time, money and emotions, and can usually be avoided. Most matters can be (and are) resolved and legally finalised by entering into a Financial Agreement or Consent Orders. One pathway to achieving this is via Collaborative Family Law or Collaborative Divorce (click here for more information).
A Financial Agreement is a legal contract between the parties that sets out how their property matters will be resolved.
The agreement may provide for the closing of bank and loan accounts, the payment of money by one party to the other, the retention by one party of certain property such as a motor vehicle or furniture, transfer of the family home in exchange for a sum of money or the marketing and sale of real estate and distribution of the proceeds.
The parties are expected to cooperate in good faith and to uphold their obligations under the agreement and fulfil all requirements.
Financial Agreements are not approved or registered in Court – to be enforceable they must comply with the formalities prescribed by legislation. Each party will need to obtain independent legal advice before signing the agreement.
Consent Orders are similar to Financial Agreements in that they set out the agreement reached between the parties. They are, however, considered more formal than Financial Agreements because they must be approved by a Registrar of the Court. An application for Consent Orders must include full financial disclosure by both parties and will be approved if the Court is satisfied that the orders are just and equitable. There is no trial for Consent Orders and the parties do not need to attend Court.
Consent Orders will provide for the same types of matters as a Financial Agreement but can also cover other family law issues, such as orders concerning any children of the relationship, spousal maintenance and child support.
Tip 4 – Don’t stress the small stuff
You should never forfeit your legal rights however there are times when it is practical to agree to disagree, let things slide and move on. When emotions are involved it’s easy to get bogged down in minor issues that get in the way of a resolution and ultimately have little impact on the outcome.
For example, the difference argued in the value of a motor vehicle can soon be depleted by the costs of disagreeing, particularly in traditional family law negotiations.. Formal valuations cost money and are justified in many cases, however, unless the motor vehicle is an irreplaceable classic, a middle-range figure obtained from Redbook should usually suffice.
A guided and supportive process, such as that of Collaborative family law, can empower parties to navigate these challenges whilst maintaining composure to achieve the best possible outcome..
Conclusion
These are just some of the ways you can use your time and resources wisely to help finalise your matter cost-effectively. The information is general only and, as always, you should obtain professional advice relevant to your circumstances.
If you or someone you know wants more information or needs help or advice, please contact us here or email [email protected].