It's Complicated

It's complicated and financial (separation after 15 years marriage)

I've got some initial legal advice, however there are some considerations that it would be interesting raising from forum members who may have some thoughts (not advice)

Wife requested a separation as not happy, husband (me) not in a happy place either with son from another relationship suffering depression, health scare (ticker and blue light taxi to hospital), financial worries (retirement, At 50 where am I at stage of life) felt going backwards with money, working away from home 1 week on 1 week off, 2 pre-teen kids with wife, wasn't expecting this and not keen on it, however have suggested counselling, but its a no, apparently have been given chances to change

We've had other properties, including her PPOR unit, but sold several and bought others together over the years

Assets
Recently purchased new car for wife
Super (SMSF both of us)
Shares (HDT)
Shares (Wifes name for kids)
1 x IP in own name
4 x IP's in Hybrid Discretionary Trust

Properties are the complex issue as in HDT with self as unit holder getting benefits

Loans held jointly

IP in own name was initial portfolio IP purchased in 1999 so say value of $300k and loans of $280k , was PPOR for a few years also so selling that one will be a loss plus CGT bill and agents fees, will have to sell a couple

IP's if all sold on a good day will net $550k Loan/Val, then comes CGT , Agent selling fees, Loan break fees and so on. Several in WA

Paying maintenance to wife monthly, she is university qualified, me blue-collar. After 13 years of stay at home Mum post separation she has found part-time work (15 hrs week) and not keen to do more hrs due to kids, but looking at better part-time jobs. Her best friend in same boat (4 kids though) and giving advice on process. Asset base causing issues with Centrelink also

She advised she would find it hard to get a loan for a new property if everything sold

Negotiations underway soon on child care/consent with family dispute resolution centre, wife only wants kids to spend every 2nd weekend with their Dad (even though working 1 week on 1 week off)

CGT if selling will be a killer, can trust be unwound, allocate properties within etc

Wife suggested keep properties (I cover, get any NG benefits) and sell as planned when market improves or retired, splitting 50/50 rather than 70/30 or 60/40 if forced to or via courts now

Asked if she wanted divorce and she didn't, not sure why and she's not saying (possibly as assets will have to be sold, name will have to be changed, no idea)

Told you it's complicated

Penny for your thoughts as you may think of something we've not

 

Well, in this day and age men generally get to share custody 50/ 50. A cynic would suggest your wife wants to maximise Centrelink by taking most of the custody. Your children deserve a dad either way and I would fight for custody unless you are certain another arrangement is in the best interests of the children (I think this unlikely).

You have to be separated for twelve months before divorce can be filed so that is something you have time to think about. If you decide you want to divorce get a good lawyer and go from there. I would want a clean break.

My thought? Get a good family court lawyer and start to think about what you want. Good luck moving on though if you continue to give the wife the best of both worlds. She either wants to move on, or not.

 

If it’s over it’s over.

Go for joint custody with time split evenly if that is what you want.

Divorce is not solely up to your wife. After 12 month’s separation either party can file for divorce. Cheaper and quicker if both agree.

Then do a final property settlement. All assets will be on the table. Sort things out once, properly.

This gives you both the opportunity to move forward.
Marg

 

Agree with above - too much amby-pamby. Clean break. Sell what you can. Look after your health. Custody should be up to kids with potential for one week on, one week off.

 

If i sell everything at once I'll pay high CGT, that will probably mean more child support also

Is there a way to transfer properties on separation?

Also

Courts or Family Relationship Centres ( I think they are social workers with some legal qualifications)

Family mediation and dispute resolution
Mediation is a way of resolving disputes between people in conflict, usually facilitated by a neutral person. Separated families are encouraged to use family mediation to help resolve their disputes about children, instead of using the family law courts.

Family mediation and dispute resolution | Family Relationships Online

accredited Family Dispute Resolution practitioner.

What happens in Family Dispute Resolution?

The FDR practitioner will help to identify the issues that need to be resolved and encourage each party to listen to the other’s point of view.

The FDR practitioner will try to keep each person on track and focussed on the children. Ideas and options will be shared with the aim of coming up with workable solutions that are in the best interests of the children.

Sometimes it’s not suitable to have each person in the same room so the practitioner may arrange to go back and forth from different rooms. This is called ‘shuttle mediation’. Sometimes it is necessary for the mediator to talk individually with each party to help move issues along or to discuss options for negotiation.

The participants will be helped to develop a parenting plan to set out arrangements for the children. An FDR practitioner will also check that everyone understands what is being said and agreed upon.

 

If there cant be an agreement on the above at mediation, I assume its off to court anyway

Looking to get the best deal for both parties with kids and financials

 

Properties can be transferred without CGT or stamp duty being triggered - but if they are mortgaged for loans the new owner will need to be able to service to qualify for a new loan for this to happen.

If properties are owned by a trustee of a hybrid trust ownership could be changed too, but this is more complex.

You will need to get very expensive legal advice on this I think.

 

It might be possible to sort out at mediation but it's still smart in this instance to get legal advice. It's worth the money to have an objective opinion during these things.

 

Maybe its because I do this regularly, but on the face of it, it doesn't seem that complex at all.

You've figured out most of the asset pool, which is the first step.

Next step is if things are amicable, figure out roughly what sort of split of assets would look like - which also seems to have been considered.

Then figure out if its possible, if the plan involves refinancing and banks etc. That might narrow down the options eventually.

Lastly if everything else has been sorted, then its the time to start trying to lock down an agreement in principle, if possible. Then lawyers at the end for consent orders and giving legal effect to what's agreed.

Along the way you might need legal advice if it gets tricky, but a lot can be done without getting the lawyers actually doing it, if you understand the process.

 

Think back to when you had a "...health scare (ticker and blue light taxi to hospital)..." and hopefully this should give you some clarity.

Then get a lawyer that may be able to give you some more structured advice than "..her best friend in same boat (4 kids though) and giving advice on process...", assuming her best friend is not a Family Court judge, a QC or a prominent member of any motorcycle enthustiasts' clubs.

 

Excellent advice.

 

Possibly the reason she wants that split of time for the kids is because of schooling - unless the two of you can live in about the same suburb?

As a child of a divorce, the thing that kids miss out on is friends if they are always away with a parent on weekends. Also makes team sports pretty impossible.

 

Half and half custody is not always in the best interests of the children. Imagine having to pack up your life every week and move across town. It may be ok when kids are smaller, but can cause problems when they get older.

I worked in high schools for 26 years. It was sad how often something needed was at the other parent’s house and could not be retrieved until the next week. Caused a lot of upset for sme kids.
Marg

 

The reason it would be complex is because of the stamp duty and CGT on transferring things. But around. but this is a moot point if you cannot qualify for the restructure of loans which will be necessary. So perhaps this should be the first thing to do - make sure you can qualify for new loans in the appropriate names. If not then the only options may be to keep as is or sell.

 

@hobartchic

Agree on Centrelink, as she's working part time in retail at present and not looking for full-time work

Have spoken to a lawyer to get initial advice but neither of us are keen to fight via lawyers

 

@Marg4000

Unfortunately, she tells me it is over

Why wait 12 months though, if divorced presumably assets are forced to be split, doing so now could be done 1/2 this Financial Year 1/2 the next or over a couple of years to minimize CGT, or are there other considerations such as deferral by courts in Divorce

For the kids we would stay in same suburb/area

 

@Terry_w

Not keen on the very

Presumably accountant can help here also on wind up of trust options?

Thanks, will need to speak to a mortgage broker

 

@thatbum

Agreement in principle between both parties or through family relationships?

I've passed on form11 for discussion as that will be discussed at family relationships mediation, but she's not even looked at it

On my part I've assisted her complete all forms she required for Centrelink etc

 

@Ted Varrick

Lawyer said generally looking at 60/40 or 70/30 split of all assets if goes to Court, Judge will decide regarding time with kids option however after a certain age they have a say also and since I work 1 week on 1 week off and they have been with their Mum who hasn't worked all their lives until now, I know their choice, I would make the same

 

The advice won't be that expensive if you agree on splits, my family guys have done similar for under $10k, although you need accounting advice on top of that. If you contest in court then $30k is likely to be absolute minimum, $50k likely minimum and up from there.