Fear of Relationships over worry about losing everything

TMNT - what do you want straightened out?

 

well you said that every dog and their owner has their opinion as they are armchair experts. so tell us what the deal is for the arrangement for 2 average aussies who get divorced after say a year or two, 30 years, kids./no kids, assume one works one doesnt what happens if breadwinner earns $100,000 and primary carer earns $30,000

* whats the deal with default custody, in terms of days per fortnight
* assets brought in prior. lets say 1 person has IP worth $200,000 and its now worth $400,000
* is the split 50% with no kids, and 5-7% per child after? what happens if they have 6 kids? whats the general rule?
* if the couple is married for 30 years does the asset broguht in prior count differently to say 3 years
* Prenups arent worth the paper they are written on, so do FBAs?

i think there were some other questions others asked too

 

I don't know anything about custody

Courts will only make an order to 'divide' up property only if it deems it just and equitable to do so.

If this is the case then they will follow the 4 step process under s79 FLA

1. identify the property and the values
2. identify the contributions of the parties to that property (all property not just land)
3. identify and assess the relevant matters such as
- effects on earning capacities
- child support
- Any of these so far as relevant:

(a) the age and state of health of each of the parties; and

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

(d) commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain; and

(e) the responsibilities of either party to support any other person; and

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

(l) the need to protect a party who wishes to continue that party's role as a parent; and

(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

(n) the terms of any order made or proposed to be made under section 79 in relation to:

(i) the property of the parties; or

(ii) vested bankruptcy property in relation to a bankrupt party; and

(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i) a party to the marriage; or

(ii) a person who is a party to a de facto relationship with a party to the marriage; or

(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p) the terms of any financial agreement that is binding on the parties to the marriage; and

(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

4. the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.

 

pre-nups are known as Binding Financial Agreements and they are worth the paper they are written on - in most cases.

 

divorce is a business

its in a lawyers best interest , to transfer your children's inheritance to his/her children .

by turning the divorce into a long and drawn out war .

 

thank you terry for that response,

however, that just tells me, what they look for and what is considered and that kids are also included

is this all they go on? if so where do the figures of 50% plus more per child etc. etc. come from?

obviously there is another rule or code that stipulates a formula or template

if it was subject to interpretation, then the judgements would range from ludicrous to reasonable,

 

I seem to be in peak divorce age at the moment (40's). My son is 13 and in year 8 at a very good state high school. He is one of 2 in his peer class whose parents are still together. Not sure why so high or just a random group but thought it was exceedingly high.

 

Unfortunately this is very true in a lot of cases. A lot of the family lawyers I know are either:
a. man hating women; or
b. super aggressive and competitive and treat it all about the percentage of the pool they get for the client.

Spending 35% of the pool on legal fees to get 60% when you could have gotten 50% with only a 5% spend makes no sense at all to me.

My family law division is growing fast (3 lawyers now). There is so much work out there, that is not an issue. We were never going to do family law but we were hearing so many clients who had basically agreed and were going for consent orders then get led astray by some overly aggressive family lawyer that we decided to start our own. Clients are not a problem, trying to find family lawyers who are not a or b above is.

You can either
1. work it out as amicably as possible and quickly as possible, move on with you life and start getting somewhere again; or 2. you can spend a year or 2 of your life paying large sums of money to hang out with lawyers and spending all your emotional energy on something very negative.

Both financially and emotionally (second one is even more important) it is so much better to sit down sort it out and move on. It is very hard if we have a bad lawyer on the other side though, if any already emotionally vunerable person has someone in their ear saying you deserve more, you deserve more, make them suffer etc it is not very easy to achieve a decent settlement.

I hate that so many family lawyers in law firms have billable hour targets (as in you must bill 6.5 hours a day), it is hardly motivation to help resolve the process quickly.

 

There is no fixed formula for the split up as each couple's circumstances will be different.

 

It can be tricky if you as the one with the Home and assets take on someone with no assets. If the marriage is less than 5 years, you leave basically with what you came with. If the other party tries to claim half after a shortish relationship, they can still go through the court system, which means you have to get a laywer and costs..Pre Nups are they way to go to save on legal fees as some with still give it a go via the courts even when told they will get what they came with.

 

Ok so why do most cases follow a certain outcome then????

If there is no formulae . The the outcomes would all be very wide ranging.

 

Of course there's a method to it - it's just not a simple one.You saw the list of things in the legislation that Terry quoted.

The whole point of having a 'complex' and flexible scheme is so it can deal with complex relationships and financial scenarios in a fair way. Relationships come in all shapes and sizes - so do the family law property outcomes.

 

You would hope this is possible.

If this outcome is possible, would you need to have anything signed by both parties agreeing to it?
that way if one changed their mind down the track, legal battles can't go ahead.

 

Consent Orders. Heavy on the paperwork but worth it.

 

You sound like a lawyer

Im sure both of you are smart to work out what im getting at.

That list terry wrote down was basically a checklist of what is considered.
The methodology and checklist are different things.
Like ingredients vs recipe

You guys are so good at beating around the bush

I was referring to

 

Not sure which bush you were referring to, but there is no black and white with property settlements. The courts will take into account a lot of stuff and then make a decision which is 'just and equitable' under the circumstances.

There is certainly no law which states that a woman can come with a handbag but leave with a house.

 

I am not sure why you are so convinced there is a simple "formula" for deciding asset splits. It seems pretty clear to me each situation is quite different and assessed on a case by case basis.

Also knowing the courts will look at the welfare and the best interest of the children, it is not surprising the carer is allocated resources to support the children - even if these were not brought into the marriage. From a perspective of someone trying to ensure the children are in an environment where the carer has the means to support the children, it does make sense. And I would argue most parents would put their children's interest first.

Whether one thinks the courts are fair or not is a matter of personal opinion, which most here would respect. But you seem particularly convinced there is some kind of universal formula used by the courts, and I cannot figure why?

 

I do find this topic interesting and some of the replies on the thread are quite surprising to me. Of course, no one wants to lose what they've worked so hard to get. But choosing not to be in a relationship for the fear of potentially losing out is - to me - akin to choosing not to go out of your home for the fear of potentially getting hurt/getting in an accident/catching a disease.

Life is fragile and full of uncertainties, anyone of us could die at any second. IMO, we've got to try and live some good times while we're still breathing.

 

Agree Ouga.
A life lived in fear, is a life half lived.

 

Because thr outcomes are consistent

Consistency is based on a rule or a guideline or understanding

Not sure why you find that do hard to believe

Like i said if it depended on how the judge felt on a particular day or some bias . Then the outcomes would vart wildy.

Its just lawyers being vague as per usual