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If a custody agreement has been reached and approved by a court, then it can be altered. However, there would have to be some interaction with the court in order to make this alteration. Because of the age of this order, there would certainly be a good case for getting it reviewed. In terms of reducing legal expense for you, you may wish to try applying for legal aid, or possible entering into a no-win, no fee arrangement with your legal representative. I can refer you to the Victorian legal aid service if you like.
If it is possible to obtain the consent of the other party to the parenting order (this is the new name for a custody order) then the alterations are much easier, quicker, simpler and cheaper. However, if it is going to be impossible to obtain the consent of the other party, it is still possible, but you not be able to claim that the application is by consent. If you are worried that there are actual acts of abuse being committed against your daughter, then it may be a matter for the police. You may also want to contact the Victorian department of children, youth and families, there information about how to respond to child abuse here:
http://www.cyf.vic.gov.au/child_protection/abuse
Showing posts with label Family Law. Show all posts
Showing posts with label Family Law. Show all posts
Wednesday, April 22, 2009
What is the legislation in AUstralia Governing Domestic Violence?
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Legislation governing Domestic Violence is different in each state of Australia. In Victoria, it is the Family Violence Protection Act 2008. In NSW, it is largely governed by the following acts:
The Crimes Act 1900, in particular Part 15A which deals with Apprehended Violence Orders and The Children and Young Persons (Care and Protection) Act 1998.In Queensland, it is governed by the Domestic and Family Violence Protection Act 1989.There is some legislation at Commonwealth Level but it does not deal with the topic entirley. The Family Law Act in a Commonwealth Legislation.
Legislation governing Domestic Violence is different in each state of Australia. In Victoria, it is the Family Violence Protection Act 2008. In NSW, it is largely governed by the following acts:
The Crimes Act 1900, in particular Part 15A which deals with Apprehended Violence Orders and The Children and Young Persons (Care and Protection) Act 1998.In Queensland, it is governed by the Domestic and Family Violence Protection Act 1989.There is some legislation at Commonwealth Level but it does not deal with the topic entirley. The Family Law Act in a Commonwealth Legislation.
Friday, April 10, 2009
Consent orders in Family Law Proceedings
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If a custody agreement has been reached and approved by a court, then it can be altered. However, there would have to be some interaction with the court in order to make this alteration. If it is possible to obtain the consent of the other party to the parenting order (this is the new name for a custody order) then the alterations are much easier, quicker, simpler and cheaper. However, if it is going to be impossible to obtain the consent of the other party, it is still possible, but you not be able to claim that the application is by consent. If you are worried that there are actual acts of abuse being committed against the child, then it may be a matter for the police.
If a custody agreement has been reached and approved by a court, then it can be altered. However, there would have to be some interaction with the court in order to make this alteration. If it is possible to obtain the consent of the other party to the parenting order (this is the new name for a custody order) then the alterations are much easier, quicker, simpler and cheaper. However, if it is going to be impossible to obtain the consent of the other party, it is still possible, but you not be able to claim that the application is by consent. If you are worried that there are actual acts of abuse being committed against the child, then it may be a matter for the police.
Saturday, February 7, 2009
Brief Guide to navigating legal issues in Divorce
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DIvorce Law in the UK
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A large number of enquiries relating to divorce law in the UK has prompted us te o post the following notes on the topic. If you have any questions regarding this information, please do not hesitate to contact us.
Notes:
Sources: http://www.sharingpensions.co.uk/marbreak8.htm
Introduction
The core legislation the court must have regard for during cases of divorce is the Matrimonial Causes Act 1973 (MCA 73). Over time this Act has been adapted in order to help the court achieve a clean break for the parties.
The interpretation of the Act has placed emphasis on the needs of the parties. So where the assets are substantial, the former spouse has been awarded benefits that are a fraction of the value of the assets.
Recent case law, such as the House of Lords ruling in the landmark case of White v White (2000), has made significant changes to the approach of the court when ruling on the division of assets on divorce in these circumstances.
During ancillary relief proceedings rules require three stages to resolve the matrimonial assets, being the first appointment, financial dispute resolution (FDR) and the final hearing. During this process the court can have regard to other rules to ensure the parties are on an equal footing when considering the financial matters as can be seen in the step-by-step guide and when expert evidence is required, the power to instruct the parties to appoint a single pensions expert.
Further changes to the way divorce can be initiated will be introduced by the Family Law Act 1996 (FLA 96), although the government has postponed the implementation of this Act for the time being.
Matrimonial Causes Act 1973
The matters that will typically concern the parties most during divorce will be the division of the matrimonial assets. The legislation that gives the court the power to resolve the matrimonial assets and financial matters, including the value of retirement benefits of any pension arrangements, if the Matrimonial Causes Act 1973 (MCA 73).
In particular section 25 of the Matrimonial Causes Act 1973 sets out the principles where it is the duty of the court to decide whether to exercise its powers and to have regard to achieving a clean break between the parties as well as to have regard to all circumstances of the case including the following matters:
• The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future including;
• The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
• The standard of living enjoyed by the family before the breakdown of the marriage;
• The age of each party to the marriage and the duration of the marriage;
• Any physical or mental disability of either of the parties to the marriage;
• The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
• The value to either of the parties to the marriage of any benefit (this can include pension arrangements) that (as a result of the divorce) the party will loose the chance of acquiring.
Where there are children of the marriage the court will want to ensure the parties maintain their obligation and responsibilities until the children cease to be dependent. This may mean making arrangements for children such as continued maintenance so it is not possible to achieve a clean break.
There have been amendments made to the MCA 73 to reflect the needs of the former spouse to secure retirement benefits on divorce. Section 166 of the Pensions Act 1995 introduced earmarking and inserted sections 25B to 25D of the MCA 73. The MCA 73 has been further amended by section 19 and 21 of the Welfare Reform and Pensions Act 1999 (WRPA) that introduced pension sharing as well as requiring an earmarking order to be expressed as a percentage.
Future legislative changes
The Family Law Act 1996 (FLA 96) when fully in force will modify the Matrimonial Causes Act 1973 and in particular the current procedure for divorce requires the couple to be married for more than one year and the only ground for divorce procedures is that the marriage has irretrievably broken down.
The FLA 96 would introduce no fault divorce, which means that no grounds will have to be shown as to why the marriage has irretrievably broken down. However, although the FLA 96 has been passed by parliament and will be brought into force with statutory instruments by the Lord Chancellor in stages, the government announced in December 2000 that the Act would. In part, be postponed probably for several years.
Case law influence
In addition to legislative changes from the Matrimonial Causes Act 1973, Pensions Act 1995 and Family Law Act 1996 and Welfare Reform and Pensions Act 1999 as well as recent cases that also influence the division of retirement benefits on divorce. With the application of earmarking orders the case of T v T (1998) showed that the usual emphasis of the court on the needs of the former spouse, this being only one of the considerations of section 25 of the MCA 73, was significant in the ruling.
The former spouse was entitled to a proportion of other matrimonial assets and maintenance but no compensation was made for the loss of pension rights to the former spouse and only an earmarking order was made on the husbands lump sum death benefit. However, it is significant that the court did consider the cash equivalent transfer value (CETV) to be of no use in determining a fair value of the retirement benefits.
Another earmarking case was Burrow v Burrow (1999) where the matrimonial assets were substantial. The former spouse received a large settlement from the sale of the family home and annual maintenance from her husband. Initially there was also an earmarking order of half the tax free lump sum and half the husbands pension income.
On appeal the earmarking order against the pension income was allowed as under the MCA 73 there is no legal requirement for an equal split of the matrimonial assets if this is not appropriate. A significant change came about with the landmark case of White v White (2000). The traditional approach of the court during the 1980s and 1990s emphasized the importance of needs and reasonable requirements of the spouse rather than an arithmetic division of the matrimonial assets.
The House of Lords ruled on the case and went further to clarify that there can no longer be gender discrimination when determining the allocation of ancillary relief and that the judge should start as a general guide with an equal division of the matrimonial assets and this will include any pension arrangements.
Ancillary relief rules
A number of rules will apply to ancillary relief proceedings. In particular new arrangements effective from 5 June 2000 means that these proceedings will have fewer delays for settlement, lower costs and greater control by the court of the conduct and proceedings and the step-by-step guide shows this process. The Family Proceedings (Amendment No.2) Rules 1999 inserts rule 2.61E of the Family Proceedings Rules 1991 that introduces a three stage process involving the first appointment, financial dispute resolution (FDR) and the final hearing.
During any stage of this process the court will expect the parties to make offers to settle all or part of the matrimonial assets and for the recipient to give full consideration. If the couple cannot come to an agreement the court has the power to make a ruling after careful consideration of the facts of the case in the final hearing.
Also important for the division of a members pension rights is rule 2.51B of the Family Proceedings Rules 1991 that applies to expert evidence and states that the overriding objective of the court must be to ensure that the parties are on an equal footing and deal with the case in ways which are proportionate to the amount of money involved, to the complexity of the issues and to the financial position of each party.
In all cases the court will need to be satisfied that the extra costs associated with expert evidence are justified whether this results in earmarking or pension sharing of the retirement benefits or offsetting against other matrimonial assets,
Whether expert evidence is accepted during ancillary relief proceedings will depend on the courts regard for rule 2.61C of the Family Proceeding Rules 1991. This states that expert evidence will not be allowed (whether written or oral) unless permission has been given by the court and the court will only give permission if expert evidence is reasonable required and justified and in accordance with the overriding objective of rule 2.51B of the Proceeding Rules 1991. Where the appointment of a pensions expert is necessary but the parties cannot agree on a single expert, the court has, under part 35 of the Civil Procedures Rules 1998, the power to instruct that evidence be given by a single pensions expert.
A large number of enquiries relating to divorce law in the UK has prompted us te o post the following notes on the topic. If you have any questions regarding this information, please do not hesitate to contact us.
Notes:
Sources: http://www.sharingpensions.co.uk/marbreak8.htm
Introduction
The core legislation the court must have regard for during cases of divorce is the Matrimonial Causes Act 1973 (MCA 73). Over time this Act has been adapted in order to help the court achieve a clean break for the parties.
The interpretation of the Act has placed emphasis on the needs of the parties. So where the assets are substantial, the former spouse has been awarded benefits that are a fraction of the value of the assets.
Recent case law, such as the House of Lords ruling in the landmark case of White v White (2000), has made significant changes to the approach of the court when ruling on the division of assets on divorce in these circumstances.
During ancillary relief proceedings rules require three stages to resolve the matrimonial assets, being the first appointment, financial dispute resolution (FDR) and the final hearing. During this process the court can have regard to other rules to ensure the parties are on an equal footing when considering the financial matters as can be seen in the step-by-step guide and when expert evidence is required, the power to instruct the parties to appoint a single pensions expert.
Further changes to the way divorce can be initiated will be introduced by the Family Law Act 1996 (FLA 96), although the government has postponed the implementation of this Act for the time being.
Matrimonial Causes Act 1973
The matters that will typically concern the parties most during divorce will be the division of the matrimonial assets. The legislation that gives the court the power to resolve the matrimonial assets and financial matters, including the value of retirement benefits of any pension arrangements, if the Matrimonial Causes Act 1973 (MCA 73).
In particular section 25 of the Matrimonial Causes Act 1973 sets out the principles where it is the duty of the court to decide whether to exercise its powers and to have regard to achieving a clean break between the parties as well as to have regard to all circumstances of the case including the following matters:
• The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future including;
• The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
• The standard of living enjoyed by the family before the breakdown of the marriage;
• The age of each party to the marriage and the duration of the marriage;
• Any physical or mental disability of either of the parties to the marriage;
• The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
• The value to either of the parties to the marriage of any benefit (this can include pension arrangements) that (as a result of the divorce) the party will loose the chance of acquiring.
Where there are children of the marriage the court will want to ensure the parties maintain their obligation and responsibilities until the children cease to be dependent. This may mean making arrangements for children such as continued maintenance so it is not possible to achieve a clean break.
There have been amendments made to the MCA 73 to reflect the needs of the former spouse to secure retirement benefits on divorce. Section 166 of the Pensions Act 1995 introduced earmarking and inserted sections 25B to 25D of the MCA 73. The MCA 73 has been further amended by section 19 and 21 of the Welfare Reform and Pensions Act 1999 (WRPA) that introduced pension sharing as well as requiring an earmarking order to be expressed as a percentage.
Future legislative changes
The Family Law Act 1996 (FLA 96) when fully in force will modify the Matrimonial Causes Act 1973 and in particular the current procedure for divorce requires the couple to be married for more than one year and the only ground for divorce procedures is that the marriage has irretrievably broken down.
The FLA 96 would introduce no fault divorce, which means that no grounds will have to be shown as to why the marriage has irretrievably broken down. However, although the FLA 96 has been passed by parliament and will be brought into force with statutory instruments by the Lord Chancellor in stages, the government announced in December 2000 that the Act would. In part, be postponed probably for several years.
Case law influence
In addition to legislative changes from the Matrimonial Causes Act 1973, Pensions Act 1995 and Family Law Act 1996 and Welfare Reform and Pensions Act 1999 as well as recent cases that also influence the division of retirement benefits on divorce. With the application of earmarking orders the case of T v T (1998) showed that the usual emphasis of the court on the needs of the former spouse, this being only one of the considerations of section 25 of the MCA 73, was significant in the ruling.
The former spouse was entitled to a proportion of other matrimonial assets and maintenance but no compensation was made for the loss of pension rights to the former spouse and only an earmarking order was made on the husbands lump sum death benefit. However, it is significant that the court did consider the cash equivalent transfer value (CETV) to be of no use in determining a fair value of the retirement benefits.
Another earmarking case was Burrow v Burrow (1999) where the matrimonial assets were substantial. The former spouse received a large settlement from the sale of the family home and annual maintenance from her husband. Initially there was also an earmarking order of half the tax free lump sum and half the husbands pension income.
On appeal the earmarking order against the pension income was allowed as under the MCA 73 there is no legal requirement for an equal split of the matrimonial assets if this is not appropriate. A significant change came about with the landmark case of White v White (2000). The traditional approach of the court during the 1980s and 1990s emphasized the importance of needs and reasonable requirements of the spouse rather than an arithmetic division of the matrimonial assets.
The House of Lords ruled on the case and went further to clarify that there can no longer be gender discrimination when determining the allocation of ancillary relief and that the judge should start as a general guide with an equal division of the matrimonial assets and this will include any pension arrangements.
Ancillary relief rules
A number of rules will apply to ancillary relief proceedings. In particular new arrangements effective from 5 June 2000 means that these proceedings will have fewer delays for settlement, lower costs and greater control by the court of the conduct and proceedings and the step-by-step guide shows this process. The Family Proceedings (Amendment No.2) Rules 1999 inserts rule 2.61E of the Family Proceedings Rules 1991 that introduces a three stage process involving the first appointment, financial dispute resolution (FDR) and the final hearing.
During any stage of this process the court will expect the parties to make offers to settle all or part of the matrimonial assets and for the recipient to give full consideration. If the couple cannot come to an agreement the court has the power to make a ruling after careful consideration of the facts of the case in the final hearing.
Also important for the division of a members pension rights is rule 2.51B of the Family Proceedings Rules 1991 that applies to expert evidence and states that the overriding objective of the court must be to ensure that the parties are on an equal footing and deal with the case in ways which are proportionate to the amount of money involved, to the complexity of the issues and to the financial position of each party.
In all cases the court will need to be satisfied that the extra costs associated with expert evidence are justified whether this results in earmarking or pension sharing of the retirement benefits or offsetting against other matrimonial assets,
Whether expert evidence is accepted during ancillary relief proceedings will depend on the courts regard for rule 2.61C of the Family Proceeding Rules 1991. This states that expert evidence will not be allowed (whether written or oral) unless permission has been given by the court and the court will only give permission if expert evidence is reasonable required and justified and in accordance with the overriding objective of rule 2.51B of the Proceeding Rules 1991. Where the appointment of a pensions expert is necessary but the parties cannot agree on a single expert, the court has, under part 35 of the Civil Procedures Rules 1998, the power to instruct that evidence be given by a single pensions expert.
New York Divorce Law
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Due to a large number of enquiries regarding the laws of divorce, we have decided to post some information on the laws of divorce in the state of New York. Please do not hesitate to contact us if you have any questions regarding these issues.
Notes acquired from: http://www.divorcesource.com/info/divorcelaws/newyork.shtml
Residency and Filing Requirements:
In order to file for a divorce in New York, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
Required residence of parties. An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:
1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 230 and 231)
Grounds for Filing: The Complaint for Divorce must declare the appropriate New York grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
Action for divorce. An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendant for a period of one or more years.
(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
(4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.
(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation. (Consolidated Laws of New York - Domestic Relations Laws - Volume 8 - Sections: 170 and Article 10, Section 170, and Article 13, Section 230)
Filing Spouse Title: Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title: Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name: Supreme Court of the State of New York, __________ County. This is the New York court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents: Complaint for Divorce and Judgment of Divorce. These are the essential documents needed to start and finalize a divorce according to New York law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Summons (UD-1), Marital Settlement Agreement, Sworn Statement of Removal of Barriers to Remarriage (UD-4), Affidavit for Defendant in Divorce Action (UD-7), Qualifed Medical Support Order (UD-8b), and Findings of Fact/Conclusions of Law (UD-10).
Court Clerk's Title: Office of the Clerk of the County Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution: Since New York is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
Disposition of property in certain matrimonial actions.
a. Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.
b. Separate property shall remain such.
c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
The court shall consider the following factors when distributing property upon divorce:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) any award of maintenance under subdivision six of this part;
(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(7) the liquid or non-liquid character of all marital property;
(8) the probable future financial circumstances of each party;
(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(10) the tax consequences to each party;
(11) the wasteful dissipation of assets by either spouse;
(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(13) any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)
Spousal Support: Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
In any action or proceeding brought (1) during the lifetime of both parties to the marriage to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, the court may direct either spouse to provide suitably for the support of the other as, in the court's discretion, justice requires, having regard to the length of time of the marriage, the ability of each spouse to be self supporting, the circumstances of the case and of the respective parties. Such direction may require the payment of a sum or sums of money either directly to either spouse or to third persons for real and personal property and services furnished to either spouse, or for the rental of or mortgage amortization or interest payments, insurance, taxes, repairs or other carrying charges on premises occupied by either spouse, or for both payments to either spouse and to such third persons.
In determining appropriate temporary or permanent maintenance which has been paid. In determining the amount and duration of maintenance the court shall consider:
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
(5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11) any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)
Child Custody: When minor children are involved in a divorce, the New York courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 240)
Child Support: New York child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent¹s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2's and child support worksheets are available at the courthouse.
Order of support by parent. When the court makes an order of support pursuant to the support guidlines, and where permitted under federal law and where the record of the proceedings contains such information, the court shall require the social security number of such parent to be affixed to such order; provided, however, that no such order shall be invalid because of the omission of such number. Where the record of the proceedings contains such information, such order shall also include on its face the name and address of the employer, if any, of the person chargeable with support provided, however, that failure to comply with this requirement shall not invalidate such order.
In determining the appropriate support amount the court will consider the following factors, but not limited to: 1. financial resources of the parties involved, including the children. 2. The standard of living prior to the divorce. 3. The physical and mental health of the children. 4. The tax ramifications. 5. Educational needs of the parents and children. 6. Other children outside the marriage each parent may have. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236, 240, and 243)
Due to a large number of enquiries regarding the laws of divorce, we have decided to post some information on the laws of divorce in the state of New York. Please do not hesitate to contact us if you have any questions regarding these issues.
Notes acquired from: http://www.divorcesource.com/info/divorcelaws/newyork.shtml
Residency and Filing Requirements:
In order to file for a divorce in New York, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
Required residence of parties. An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:
1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 230 and 231)
Grounds for Filing: The Complaint for Divorce must declare the appropriate New York grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
Action for divorce. An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendant for a period of one or more years.
(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
(4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.
(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation. (Consolidated Laws of New York - Domestic Relations Laws - Volume 8 - Sections: 170 and Article 10, Section 170, and Article 13, Section 230)
Filing Spouse Title: Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title: Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name: Supreme Court of the State of New York, __________ County. This is the New York court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents: Complaint for Divorce and Judgment of Divorce. These are the essential documents needed to start and finalize a divorce according to New York law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Summons (UD-1), Marital Settlement Agreement, Sworn Statement of Removal of Barriers to Remarriage (UD-4), Affidavit for Defendant in Divorce Action (UD-7), Qualifed Medical Support Order (UD-8b), and Findings of Fact/Conclusions of Law (UD-10).
Court Clerk's Title: Office of the Clerk of the County Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution: Since New York is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
Disposition of property in certain matrimonial actions.
a. Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.
b. Separate property shall remain such.
c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
The court shall consider the following factors when distributing property upon divorce:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) any award of maintenance under subdivision six of this part;
(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(7) the liquid or non-liquid character of all marital property;
(8) the probable future financial circumstances of each party;
(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(10) the tax consequences to each party;
(11) the wasteful dissipation of assets by either spouse;
(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(13) any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)
Spousal Support: Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
In any action or proceeding brought (1) during the lifetime of both parties to the marriage to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, the court may direct either spouse to provide suitably for the support of the other as, in the court's discretion, justice requires, having regard to the length of time of the marriage, the ability of each spouse to be self supporting, the circumstances of the case and of the respective parties. Such direction may require the payment of a sum or sums of money either directly to either spouse or to third persons for real and personal property and services furnished to either spouse, or for the rental of or mortgage amortization or interest payments, insurance, taxes, repairs or other carrying charges on premises occupied by either spouse, or for both payments to either spouse and to such third persons.
In determining appropriate temporary or permanent maintenance which has been paid. In determining the amount and duration of maintenance the court shall consider:
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
(5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11) any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)
Child Custody: When minor children are involved in a divorce, the New York courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 240)
Child Support: New York child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent¹s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2's and child support worksheets are available at the courthouse.
Order of support by parent. When the court makes an order of support pursuant to the support guidlines, and where permitted under federal law and where the record of the proceedings contains such information, the court shall require the social security number of such parent to be affixed to such order; provided, however, that no such order shall be invalid because of the omission of such number. Where the record of the proceedings contains such information, such order shall also include on its face the name and address of the employer, if any, of the person chargeable with support provided, however, that failure to comply with this requirement shall not invalidate such order.
In determining the appropriate support amount the court will consider the following factors, but not limited to: 1. financial resources of the parties involved, including the children. 2. The standard of living prior to the divorce. 3. The physical and mental health of the children. 4. The tax ramifications. 5. Educational needs of the parents and children. 6. Other children outside the marriage each parent may have. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236, 240, and 243)
Tuesday, December 30, 2008
Property Settlement in Divorce - California
In California, when two persons get divorced initially there are two things that can happen. The first is where there is no disagreement between the parties about property settlement agreement. In this situation, the property of the marriage will be divided according to a written agreement between the spouses ("marital separation agreement"). The major issues, financial and non-financial in the agreement are usually property and debt division, custody, child support and spousal support. Once the divorce proceedings have commenced, it can be incorporated into the divorce and become part of the relevant court order, in which case it is enforceable. If this does not happen, then the terms would simply remain an agreement between the parties.
The legal system generally encourages any proceedings which occur by consent between the parties. The reason for this is that it represents the most likely way that the proceedings will be resolved quickly and with a minimum of cost and emotional turmoil to both sides. Consent based proceedings move through the system much more quickly. Once this process has been completed and the agreement has been made part of the orders of the court, the property settlement agreement can only be amended by another hearing in front of a judge and negating any significant extenuating circumstances, the property agreement negotiated will carry a lot of weight.
Unllike other states, in California all property such as pensions, profit-sharing benefits, stock options, and other retirement benefits acquired during a marriage is considered to be marital property and all property owned before the marriage is considered to be non-marital property. This division also applies to debts. Debts are also considered community or marital property and may include credit card bills. If the parties cannot agree on the division of property and debts a judge will review your circumstances and issue an order making the decision for you.
The definition of separate property is 'property acquired before your marriage and may include rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during marriage; and gifts to one member of the marriage alone you alone, not you and your spouse.
Because the enormously complicated nature of property division issues in California and the potential for these issues to become unmanageable, finding high quality legal advice is always recommended at a difficult stage such as this.
Lawyer online - free lawyer information - lawyer advice
The legal system generally encourages any proceedings which occur by consent between the parties. The reason for this is that it represents the most likely way that the proceedings will be resolved quickly and with a minimum of cost and emotional turmoil to both sides. Consent based proceedings move through the system much more quickly. Once this process has been completed and the agreement has been made part of the orders of the court, the property settlement agreement can only be amended by another hearing in front of a judge and negating any significant extenuating circumstances, the property agreement negotiated will carry a lot of weight.
Unllike other states, in California all property such as pensions, profit-sharing benefits, stock options, and other retirement benefits acquired during a marriage is considered to be marital property and all property owned before the marriage is considered to be non-marital property. This division also applies to debts. Debts are also considered community or marital property and may include credit card bills. If the parties cannot agree on the division of property and debts a judge will review your circumstances and issue an order making the decision for you.
The definition of separate property is 'property acquired before your marriage and may include rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during marriage; and gifts to one member of the marriage alone you alone, not you and your spouse.
Because the enormously complicated nature of property division issues in California and the potential for these issues to become unmanageable, finding high quality legal advice is always recommended at a difficult stage such as this.
Lawyer online - free lawyer information - lawyer advice
Sunday, December 28, 2008
How to File for Divorce in California
Going through a divorce can be one of the most trying and difficult experiences anyone will ever face. Knowing how to navigate the legal system and the maze of hurdles can really help with getting a divorce through quickly, cheaply and in an uncomplicated way.
In California, a divorce is called 'dissolution' You need to be a resident of California for six months and a county resident for three months to file at which time, either spouse may file stating "irreconcilable differences". It is much easier to end a marriage by consent and if this is the case, a written agreement (called a "stipulation") can be made.
The legal divorce process begins when one of the spouses files a "Petition for Dissolution of Marriage". The papers are then sent to the other spouse. So long as there is consent over issues such as property and debt division, child custody and child support matters, the divorce can simply be finalised, if there is no agreement, a hearing date can be set for when the parties will put thier respective cases to the court. Stay tuned for later articles about the the next stages of the process in a divorce in California.
Lawyer online - free lawyer information - lawyer advice
In California, a divorce is called 'dissolution' You need to be a resident of California for six months and a county resident for three months to file at which time, either spouse may file stating "irreconcilable differences". It is much easier to end a marriage by consent and if this is the case, a written agreement (called a "stipulation") can be made.
The legal divorce process begins when one of the spouses files a "Petition for Dissolution of Marriage". The papers are then sent to the other spouse. So long as there is consent over issues such as property and debt division, child custody and child support matters, the divorce can simply be finalised, if there is no agreement, a hearing date can be set for when the parties will put thier respective cases to the court. Stay tuned for later articles about the the next stages of the process in a divorce in California.
Lawyer online - free lawyer information - lawyer advice
Sunday, November 30, 2008
Divorce Law
Because of a very large number of inquiries we have had in relation divorce. We have posted some information of general interest in relation to the laws and rules which govern this area of practice.
Can I apply for a divorce?
You can apply for a divorce in Australia if either you or your spouse:
* regard Australia as your home and intend to live in Australia indefinitely, or
* are an Australian citizen by birth, descent or by grant of Australian citizenship, or
* ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.
To apply for a divorce, you must complete an Application for Divorce and file it with the Court and pay the application fee. You may be eligible for a fee exemption or waiver.
If you apply for a divorce together with your spouse, it is a joint application and you and your spouse are joint applicants.
If you apply for a divorce by yourself, you are a sole applicant and your spouse is the respondent.
You may prepare your own divorce application or ask a lawyer to do it for you. The Application for Divorce Kit has instructions for completing the application and filing it. It includes an Application for Divorce form.
What a court considers in divorce applications
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.
The only ground for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.
If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
What will a divorce cost?
You also need to pay a fee or request an exemption or waiver of the fee by filing an Exemption form or an Application for Waiver of Court Fees form. This fee is set by regulation and is generally only adjusted every two years.
The fee does not apply in some cases; for example, if you hold certain government concession cards or you are experiencing financial hardship. To be eligible for a fee exemption or waiver for a joint application, both you and your spouse must qualify for the exemption or waiver. If only one spouse qualifies for the exemption or waiver, then the full fee applies.
More information can be found under the Fees section of this website, including an explanation of different payment methods.
Can I oppose a divorce application?
If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:
* there has not been 12 months separation as alleged in the application, or
* the court does not have jurisdiction.
If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date. You need to set out the grounds on which you seek the dismissal in the Response to Divorce.
If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.
What if the application has errors of fact?
If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response to Divorce. You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. You should attend the divorce hearing.
When should I file the Response to Divorce?
If you want to file a Response to Divorce, you need to file it at a family law registry:
* if served in Australia - within 28 days of the application being served on you, or
* if served outside of Australia - within 42 days of the application being served on you.
Do I have to attend the divorce hearing?
If there is no child* of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.
If you have made a joint application and there is a child of the marriage aged under 18 years, neither you nor your spouse are required to attend the court hearing.
If you have made a sole application and there is a child of the marriage aged under 18 years, you must attend the court hearing unless circumstances prevent you from attending.
If a respondent has completed and filed a Response to Divorce, he or she should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in you absence.
If a respondent has, in a Respone to Divorce, opposed the application, the respondent must appear in person on the hearing date.
If it is difficult for you to attend in person, you may ask the Court to appear by telephone. You must request in writing a hearing by telephone if you are unable to attend because of reasons such as distance from the Court or incapacity. See Rule 25.11 of the Federal Magistrates Court Rules 2001. For more information about this request, call 1300 352 000, email enquiries@familylawcourts.gov.au or visit your nearest family law registry.
* A child of the marriage includes:
* any child of you and your spouse, including children born before the marriage or after separation
* any child adopted by you and your spouse, or
* any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.
We are getting divorced - will decisions about future arrangements for our children, property and maintenance be made at the same time?
The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:
* make an agreement with your spouse and file it with a court, or
* seek orders from a court, where you and your spouse cannot reach an agreement.
For parenting cases, you also have the option to make a parenting plan. For more information about parenting plans, go to www.familyrelationships.gov.au or call 1800 050 321.
If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.
More information can be found under the Topics ‘Children’s Matters’ and ‘Property and Financial Matters’ on the home page.
I have applied for a divorce, is it safe to set a wedding date for my new marriage?
You should not plan to remarry until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing, however, you should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.
If you intend to remarry, you must give the marriage celebrant a Notice of Intended Marriage at least one month before the wedding date, and comply with other requirements of the Marriage Act 1961.
As soon as the divorce order is granted, the marriage celebrant may accept the Notice of Intended Marriage. You must show the Certificate of Divorce to the marriage celebrant before the wedding can take place.
What is meant by separation under the one roof?
It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation, you need to prove to the Court that you were separated during this time.
If you are applying for divorce by yourself, you need to prepare an affidavit. If you are filing a joint application, both you and your spouse need to prepare separate affidavits. The Court also requires another person (not your spouse) to prepare an affidavit that contains as much information as is known to them about the separation. This requirement applies for both sole and joint applications. In your affidavit, you need to prove that there has been a change in the relationship, gradual or sudden, demonstrating you and your spouse have separated.
More information can be found in the Family Law Courts publication 'Separated but living under the one roof' under the Publications section of this website.
We want to divorce but have been married less than two years. We understand we have to do certain things, what are they?
If you have been married less than two years and want to apply for a divorce, you must either:
* attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse, or
* if you have not attended counselling, seek permission of the Court to apply for a divorce.
The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.
More information can be found in the Family Law Courts publication ‘Have you been married less than two years’ under the Publications section of this website.
I married overseas - can I get a divorce in Australia?
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
* regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
* are an Australia citizen by birth or descent
* are an Australia citizen by grant of an Australia citizenship
* ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file:
* an English translation of it, and
* an affidavit from the translator which:
* states his or her qualifications to translate
* attaches a copy of the marriage certificate
* attaches the translated marriage certificate
* states that the translation is an accurate translation of the marriage certificate, and
* states that the attached copy of the marriage certificate is a true copy of the marriage certificate translated.
More information can be found in the Family Court of Australia form 'Affidavit translation of marriage certificate' under the Forms section of this website.
I can’t find my spouse to serve a divorce application, what do I do?
If you have made a sole application, you need to serve the divorce application on your spouse. If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the Court for:
* substituted service, or
* dispensation of service.
If you require more information, you should see a solicitor.
Can I apply for a divorce?
You can apply for a divorce in Australia if either you or your spouse:
* regard Australia as your home and intend to live in Australia indefinitely, or
* are an Australian citizen by birth, descent or by grant of Australian citizenship, or
* ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.
To apply for a divorce, you must complete an Application for Divorce and file it with the Court and pay the application fee. You may be eligible for a fee exemption or waiver.
If you apply for a divorce together with your spouse, it is a joint application and you and your spouse are joint applicants.
If you apply for a divorce by yourself, you are a sole applicant and your spouse is the respondent.
You may prepare your own divorce application or ask a lawyer to do it for you. The Application for Divorce Kit has instructions for completing the application and filing it. It includes an Application for Divorce form.
What a court considers in divorce applications
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.
The only ground for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.
If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
What will a divorce cost?
You also need to pay a fee or request an exemption or waiver of the fee by filing an Exemption form or an Application for Waiver of Court Fees form. This fee is set by regulation and is generally only adjusted every two years.
The fee does not apply in some cases; for example, if you hold certain government concession cards or you are experiencing financial hardship. To be eligible for a fee exemption or waiver for a joint application, both you and your spouse must qualify for the exemption or waiver. If only one spouse qualifies for the exemption or waiver, then the full fee applies.
More information can be found under the Fees section of this website, including an explanation of different payment methods.
Can I oppose a divorce application?
If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:
* there has not been 12 months separation as alleged in the application, or
* the court does not have jurisdiction.
If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date. You need to set out the grounds on which you seek the dismissal in the Response to Divorce.
If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.
What if the application has errors of fact?
If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response to Divorce. You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. You should attend the divorce hearing.
When should I file the Response to Divorce?
If you want to file a Response to Divorce, you need to file it at a family law registry:
* if served in Australia - within 28 days of the application being served on you, or
* if served outside of Australia - within 42 days of the application being served on you.
Do I have to attend the divorce hearing?
If there is no child* of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.
If you have made a joint application and there is a child of the marriage aged under 18 years, neither you nor your spouse are required to attend the court hearing.
If you have made a sole application and there is a child of the marriage aged under 18 years, you must attend the court hearing unless circumstances prevent you from attending.
If a respondent has completed and filed a Response to Divorce, he or she should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in you absence.
If a respondent has, in a Respone to Divorce, opposed the application, the respondent must appear in person on the hearing date.
If it is difficult for you to attend in person, you may ask the Court to appear by telephone. You must request in writing a hearing by telephone if you are unable to attend because of reasons such as distance from the Court or incapacity. See Rule 25.11 of the Federal Magistrates Court Rules 2001. For more information about this request, call 1300 352 000, email enquiries@familylawcourts.gov.au or visit your nearest family law registry.
* A child of the marriage includes:
* any child of you and your spouse, including children born before the marriage or after separation
* any child adopted by you and your spouse, or
* any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.
We are getting divorced - will decisions about future arrangements for our children, property and maintenance be made at the same time?
The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:
* make an agreement with your spouse and file it with a court, or
* seek orders from a court, where you and your spouse cannot reach an agreement.
For parenting cases, you also have the option to make a parenting plan. For more information about parenting plans, go to www.familyrelationships.gov.au or call 1800 050 321.
If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.
More information can be found under the Topics ‘Children’s Matters’ and ‘Property and Financial Matters’ on the home page.
I have applied for a divorce, is it safe to set a wedding date for my new marriage?
You should not plan to remarry until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing, however, you should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.
If you intend to remarry, you must give the marriage celebrant a Notice of Intended Marriage at least one month before the wedding date, and comply with other requirements of the Marriage Act 1961.
As soon as the divorce order is granted, the marriage celebrant may accept the Notice of Intended Marriage. You must show the Certificate of Divorce to the marriage celebrant before the wedding can take place.
What is meant by separation under the one roof?
It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation, you need to prove to the Court that you were separated during this time.
If you are applying for divorce by yourself, you need to prepare an affidavit. If you are filing a joint application, both you and your spouse need to prepare separate affidavits. The Court also requires another person (not your spouse) to prepare an affidavit that contains as much information as is known to them about the separation. This requirement applies for both sole and joint applications. In your affidavit, you need to prove that there has been a change in the relationship, gradual or sudden, demonstrating you and your spouse have separated.
More information can be found in the Family Law Courts publication 'Separated but living under the one roof' under the Publications section of this website.
We want to divorce but have been married less than two years. We understand we have to do certain things, what are they?
If you have been married less than two years and want to apply for a divorce, you must either:
* attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse, or
* if you have not attended counselling, seek permission of the Court to apply for a divorce.
The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.
More information can be found in the Family Law Courts publication ‘Have you been married less than two years’ under the Publications section of this website.
I married overseas - can I get a divorce in Australia?
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
* regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
* are an Australia citizen by birth or descent
* are an Australia citizen by grant of an Australia citizenship
* ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file:
* an English translation of it, and
* an affidavit from the translator which:
* states his or her qualifications to translate
* attaches a copy of the marriage certificate
* attaches the translated marriage certificate
* states that the translation is an accurate translation of the marriage certificate, and
* states that the attached copy of the marriage certificate is a true copy of the marriage certificate translated.
More information can be found in the Family Court of Australia form 'Affidavit translation of marriage certificate' under the Forms section of this website.
I can’t find my spouse to serve a divorce application, what do I do?
If you have made a sole application, you need to serve the divorce application on your spouse. If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the Court for:
* substituted service, or
* dispensation of service.
If you require more information, you should see a solicitor.
Guide to Child Custody
A guide to Child Custody
"Residence" was once called custody.
Residence deals with who the child is to reside or live with.
When parents separate or do not live together, one of the most important issues that they need to resolve is the children's continued contact with their parents and where the children are to live.
The importance of this is in fact set out clearly in the Family Law Act 1975 which relates to all children in Australia. The Act sets out that its object is "to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children".
The Family Law Act also sets out that the principles underlying this object are, unless it would be contrary to a child's best interests:
# children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and
# children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development; and
# parents share duties and responsibilities concerning the care, welfare and development of their children; and
# parents should agree about the future parenting of their children. Parents are encouraged to agree matters concerning their children rather than seeking an order of the court.
If parents can agree about the parenting of their children, who their children should live with and the contact that their children should have with the other parent, then they may if they wish formalize that agreement in several ways through the Family Court. There is no obligation to do so.
If, unfortunately, parents cannot agree about the parenting of their children, then an application can be made to the Family Court for its assistance in resolving disputes. Through the court process, the Family Court will encourage parents to reach their own agreement about the children but ultimately, if parents are unable to agree, the Family Court can make parenting orders about a child. A child residence order is a parenting order.
Whenever the court makes any orders about children, the most important consideration is what is in the best interests of the child.
This information is of general use only, you should see a solicitor to obtain advice pertinent and specific to your situation.
"Residence" was once called custody.
Residence deals with who the child is to reside or live with.
When parents separate or do not live together, one of the most important issues that they need to resolve is the children's continued contact with their parents and where the children are to live.
The importance of this is in fact set out clearly in the Family Law Act 1975 which relates to all children in Australia. The Act sets out that its object is "to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children".
The Family Law Act also sets out that the principles underlying this object are, unless it would be contrary to a child's best interests:
# children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and
# children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development; and
# parents share duties and responsibilities concerning the care, welfare and development of their children; and
# parents should agree about the future parenting of their children. Parents are encouraged to agree matters concerning their children rather than seeking an order of the court.
If parents can agree about the parenting of their children, who their children should live with and the contact that their children should have with the other parent, then they may if they wish formalize that agreement in several ways through the Family Court. There is no obligation to do so.
If, unfortunately, parents cannot agree about the parenting of their children, then an application can be made to the Family Court for its assistance in resolving disputes. Through the court process, the Family Court will encourage parents to reach their own agreement about the children but ultimately, if parents are unable to agree, the Family Court can make parenting orders about a child. A child residence order is a parenting order.
Whenever the court makes any orders about children, the most important consideration is what is in the best interests of the child.
This information is of general use only, you should see a solicitor to obtain advice pertinent and specific to your situation.
Monday, November 24, 2008
How does mediation work with parenting orders?
In relation to obtaining a good outcome in mediation this is a very inexact science, but there are some factors which can help with trying to achieve the objectives of mediation. Mainting an openess of mind, looking for creative solutions, having a clear understanding of your own objectives with the mediation process and being willing to communicate openly about your wishes are all recognised as being precursors to mediations achieving their desired outcomes. There is a good article about this here:
http://library.findlaw.com/1999/Jun/1/128176.html which you may wish to read.
The court process demands that parties attempt to reach a consensual agreement either through family counselling, establishing 'consent orders' or where a parenting plan is approved by a solicitor and registered with a court. However, if all agreement breaks down, then the court can make what are called 'parenting orders' which carry the full force of the law - if they are not complied with the penalties can include large fines and in extreme cases imprisonment. A parenting order deals with the custody issues and the court considers the applications of the parties based on the welfare of the children and the concept of equal shared parental responsibility.
NOTES ON PARENTING ORDERS:
Parents responsibilities
Every parent has parental responsibility for a child regardless of whether or not the parents are married.
* This responsibility continues to exist despite changes in the nature of the relationship of the child's parents.
* Parental responsibility survives separation, divorce and re-marriage.
* There are some exceptions, including for instance where there is a court order to the contrary or if paternity is in dispute.
Paternity: To establish a particular man is father of a child.
The issue of paternity often arises when the mother seeks maintenance for the child, or where a father seeks contact with the child.
* Paternity can be established in several ways including:
o Father's name on the birth certificate
o Through acknowledgment
o A court finding
* The court can order a parentage testing procedure, which can include a blood or genetic test.
* Failure to take the test can result in the court drawing such inferences as appear just.
* Once paternity has been proved the mother can claim child support from the father of her child and the father can approach the court for contact.
Residence, contact and specific issues orders
* A residence order deals with the question of where the child is to live.
* A contact order deals with the contact between a child and another person, e.g. a parent or grandparent. This includes ongoing education, medical needs or the long term care of the child.
* A specific issue order deals with other aspects of parental responsibility to a child, that is responsibility for the day to day care of a child, or the long term care of a child. This includes ongoing education or medical needs.
* A child maintenance order deals with the arrangements for the financial support of a child. See the Child Support section of this website.
Informal agreements
If the parents agree on the future arrangements for a child's residence, contact and specific issues as to parenting, the arrangements can be informal between the parents or formalised via a court order that both parents can seek by consent.
What the court considers
Where the parents of a child are not able to agree it is left to the court to determine.
In making a decision the court will take into account any factor that has a bearing on a child's welfare, care and development including:
* The nature of the child's relationship with each parent.
* The capacity of each parent to provide for the needs of the child including emotional and intellectual needs.
* The likely effect on the child of changes in the child's circumstances.
* The need to protect the child from physical or psychological harm.
* Any family violence involving the child or a member of the child's family.
* The child's maturity, sex and background including any need to maintain a connection with a lifestyle or culture.
* If the child is of a sufficient maturity, the child's wishes will be taken into account.
If it is in the best interests of a child, the Court can make an order directing a person to attend a post-separation parenting program.
Overseas travel
A child cannot be taken overseas without a court order or the written consent of the other parent or guardian.
* If there is a threat a child will be removed from Australia, an application can be made to the court seeking an order to prevent this.
Breach of parenting orders
There can be serious sanctions imposed by a court for a breach of a parenting order. It is recommended you seek legal advice regarding your situation.
Contravention of orders:
* If a person has intentionally failed to comply with an order.
* A person made no reasonable attempt to comply with an order.
* A person intentionally prevented compliance with an order by a person who is bound by it.
* A person aided or abetted a contravention of the order by a person who is bound by it.
If the court finds that a person has a reasonable excuse for contravening an order then they will be presumed not to have contravened the order.
* What is considered to be a reasonable excuse is a matter for the court and is only partly set out in the legislation.
Powers of the court
Amendments to the Family Law Act 1975 set up a parenting compliance regime. This introduced various orders the court can apply to contravention of primary orders relating to children. The powers of the court include:
* Directing a person to attend assessment to determine suitability for enrolment in a program.
* Once assessed a person can be directed to attend a program.
* Further parenting orders can be made to compensate for contact or residence that did not take place because of the original breach.
* Make another order varying the originally contravened order.
* The matter can be adjourned to allow for one or more parties to apply for the original order to be discharged, varied or suspended.
For serious disregard of obligations
* Community service orders
* An order requiring the person to enter into a bond
* Fines
* Term of imprisonment - extreme cases
http://library.findlaw.com/1999/Jun/1/128176.html which you may wish to read.
The court process demands that parties attempt to reach a consensual agreement either through family counselling, establishing 'consent orders' or where a parenting plan is approved by a solicitor and registered with a court. However, if all agreement breaks down, then the court can make what are called 'parenting orders' which carry the full force of the law - if they are not complied with the penalties can include large fines and in extreme cases imprisonment. A parenting order deals with the custody issues and the court considers the applications of the parties based on the welfare of the children and the concept of equal shared parental responsibility.
NOTES ON PARENTING ORDERS:
Parents responsibilities
Every parent has parental responsibility for a child regardless of whether or not the parents are married.
* This responsibility continues to exist despite changes in the nature of the relationship of the child's parents.
* Parental responsibility survives separation, divorce and re-marriage.
* There are some exceptions, including for instance where there is a court order to the contrary or if paternity is in dispute.
Paternity: To establish a particular man is father of a child.
The issue of paternity often arises when the mother seeks maintenance for the child, or where a father seeks contact with the child.
* Paternity can be established in several ways including:
o Father's name on the birth certificate
o Through acknowledgment
o A court finding
* The court can order a parentage testing procedure, which can include a blood or genetic test.
* Failure to take the test can result in the court drawing such inferences as appear just.
* Once paternity has been proved the mother can claim child support from the father of her child and the father can approach the court for contact.
Residence, contact and specific issues orders
* A residence order deals with the question of where the child is to live.
* A contact order deals with the contact between a child and another person, e.g. a parent or grandparent. This includes ongoing education, medical needs or the long term care of the child.
* A specific issue order deals with other aspects of parental responsibility to a child, that is responsibility for the day to day care of a child, or the long term care of a child. This includes ongoing education or medical needs.
* A child maintenance order deals with the arrangements for the financial support of a child. See the Child Support section of this website.
Informal agreements
If the parents agree on the future arrangements for a child's residence, contact and specific issues as to parenting, the arrangements can be informal between the parents or formalised via a court order that both parents can seek by consent.
What the court considers
Where the parents of a child are not able to agree it is left to the court to determine.
In making a decision the court will take into account any factor that has a bearing on a child's welfare, care and development including:
* The nature of the child's relationship with each parent.
* The capacity of each parent to provide for the needs of the child including emotional and intellectual needs.
* The likely effect on the child of changes in the child's circumstances.
* The need to protect the child from physical or psychological harm.
* Any family violence involving the child or a member of the child's family.
* The child's maturity, sex and background including any need to maintain a connection with a lifestyle or culture.
* If the child is of a sufficient maturity, the child's wishes will be taken into account.
If it is in the best interests of a child, the Court can make an order directing a person to attend a post-separation parenting program.
Overseas travel
A child cannot be taken overseas without a court order or the written consent of the other parent or guardian.
* If there is a threat a child will be removed from Australia, an application can be made to the court seeking an order to prevent this.
Breach of parenting orders
There can be serious sanctions imposed by a court for a breach of a parenting order. It is recommended you seek legal advice regarding your situation.
Contravention of orders:
* If a person has intentionally failed to comply with an order.
* A person made no reasonable attempt to comply with an order.
* A person intentionally prevented compliance with an order by a person who is bound by it.
* A person aided or abetted a contravention of the order by a person who is bound by it.
If the court finds that a person has a reasonable excuse for contravening an order then they will be presumed not to have contravened the order.
* What is considered to be a reasonable excuse is a matter for the court and is only partly set out in the legislation.
Powers of the court
Amendments to the Family Law Act 1975 set up a parenting compliance regime. This introduced various orders the court can apply to contravention of primary orders relating to children. The powers of the court include:
* Directing a person to attend assessment to determine suitability for enrolment in a program.
* Once assessed a person can be directed to attend a program.
* Further parenting orders can be made to compensate for contact or residence that did not take place because of the original breach.
* Make another order varying the originally contravened order.
* The matter can be adjourned to allow for one or more parties to apply for the original order to be discharged, varied or suspended.
For serious disregard of obligations
* Community service orders
* An order requiring the person to enter into a bond
* Fines
* Term of imprisonment - extreme cases
Tuesday, October 21, 2008
Who gets what in a divorce?
Are you facing a divorce? It is essential to understand your legal rights and entitlements during this difficult time. If you have determined your main goals for the divorce like we suggested in our divorce negotiation tips, then you should have a pretty good idea of what you need in the property division. A lot of times during divorce, having as much cash on hand as possible is an important goal. It's a good idea to look at your state's guidelines for dividing up property, because it might help you if you get stuck while negotiating, and generally adhering to the guidelines will give you more confidence that the agreement is fair and will be accepted. The courts are usually inclined to accept the parties' property settlement as long as they don't find any signs of fraud or coercion. At the same time, the courts can't protect you, so if your agreement isn't fair, you're out of luck. Make sure you understand and are happy with the terms of your divorce before you file the papers with the court. If you use Help Yourself Divorce to prepare your divorce paperwork, we'll make sure your agreement adheres to the court's rules, and we put your agreement into terms the court will understand, we can't give you legal advice or comment on individual circumstances. This is where you need to be your own advocate. And if you need, you can have an attorney review your agreement before filing. An attorney is there to protect your rights, if that's what you need.
Every state has specific clauses in their statutes determining how marital and non-marital property will be classified, and determining how your property will be divided in a divorce. The guidelines will be similar across the states, but there are still unique differences that you should be aware of. Check your state's statutes if you're not sure. Generally, most property accumulated during the marriage is considered marital property. There are some exceptions. For example, gifts or inheritances are usually considered separate property, although each state's laws slightly varies. In community property states, marital property is divided 50/50 unless there is an extraordinary circumstance why it should not be. In equitable distribution states, property is divided in a fair, but not necessarily equal, manner. Here is a list of community property states:
Arizona
California
Idaho
Louisiana
Nevada
New Mexico
Texas
Washington
Wisconsin
Just like with other divorce issues, property division is one you will probably be happier with if you are able to settle on your own rather than having the court decide how your property will be split.
When deciding what to do with your property, you should think about your financial situation and your priorities. If you have a lot of marital debt (especially credit card debt), you might want to sell anything you can, and use the money to pay off those debts. Credit card debt can take years to pay off if you just make the minimum payments. During that time, if you're both legally responsible for the debt and you've agreed that your spouse will pay it off, the credit card companies might still come after you if your spouse doesn't pay. They're not a party to your divorce, so your final decree isn't always binding with them. You should call your debtors to see if you're legally responsible for the debt. If so, take that into consideration when dividing the property and debts. If you have a mortgage or car loans that are in both names, you might see if you can refinance. There will probably be a fee for doing this, but you might actually save money if you can get a lower interest rate. Also, you don't have to worry about your spouse not paying the debt if the loan is in both names. If the peace of mind is worth the cost to you, go ahead and check out your options.
There are a couple of things you can do if you're not able to pay off the debts or refinance the loans. However, while some of these options might provide some protection, they might not be legally binding. You might want to speak with an attorney to see if there's anything else you can do for more legal protection. One thing you can do is write to your creditors to inform them of the divorce and ask to take your name off the account. Even if they won't do that, you may be able to have them close the account or refuse to authorize any more charges without your permission. Where possible, close any accounts that are in both your names.
If you still have debt left over at the time of the divorce, you'll need to figure out who will pay it. Perhaps one person can pay off all debt in exchange for more property. You should think of who benefited most from the debt. If it's a car loan, for example... who drove the car the most? If it's a credit card debt, think of who made the most charges or who most used the items that were purchased.
The key in property settlement is to be reasonable. Maybe you can pay off your credit cards by selling your car and getting a less expensive model. Money is often tight during a divorce, and it's possible you'll need to make some sacrifices. It's important to look at the big picture, to decide what you can afford to keep and what makes the most sense financially. It's critical to plan and keep track of everything. If your spouse handled all your finances during the marriage and you were in the dark, you'll need a complete inventory of all your assets, debts, and expenses, so you can quickly get up to date.
Every state has specific clauses in their statutes determining how marital and non-marital property will be classified, and determining how your property will be divided in a divorce. The guidelines will be similar across the states, but there are still unique differences that you should be aware of. Check your state's statutes if you're not sure. Generally, most property accumulated during the marriage is considered marital property. There are some exceptions. For example, gifts or inheritances are usually considered separate property, although each state's laws slightly varies. In community property states, marital property is divided 50/50 unless there is an extraordinary circumstance why it should not be. In equitable distribution states, property is divided in a fair, but not necessarily equal, manner. Here is a list of community property states:
Arizona
California
Idaho
Louisiana
Nevada
New Mexico
Texas
Washington
Wisconsin
Just like with other divorce issues, property division is one you will probably be happier with if you are able to settle on your own rather than having the court decide how your property will be split.
When deciding what to do with your property, you should think about your financial situation and your priorities. If you have a lot of marital debt (especially credit card debt), you might want to sell anything you can, and use the money to pay off those debts. Credit card debt can take years to pay off if you just make the minimum payments. During that time, if you're both legally responsible for the debt and you've agreed that your spouse will pay it off, the credit card companies might still come after you if your spouse doesn't pay. They're not a party to your divorce, so your final decree isn't always binding with them. You should call your debtors to see if you're legally responsible for the debt. If so, take that into consideration when dividing the property and debts. If you have a mortgage or car loans that are in both names, you might see if you can refinance. There will probably be a fee for doing this, but you might actually save money if you can get a lower interest rate. Also, you don't have to worry about your spouse not paying the debt if the loan is in both names. If the peace of mind is worth the cost to you, go ahead and check out your options.
There are a couple of things you can do if you're not able to pay off the debts or refinance the loans. However, while some of these options might provide some protection, they might not be legally binding. You might want to speak with an attorney to see if there's anything else you can do for more legal protection. One thing you can do is write to your creditors to inform them of the divorce and ask to take your name off the account. Even if they won't do that, you may be able to have them close the account or refuse to authorize any more charges without your permission. Where possible, close any accounts that are in both your names.
If you still have debt left over at the time of the divorce, you'll need to figure out who will pay it. Perhaps one person can pay off all debt in exchange for more property. You should think of who benefited most from the debt. If it's a car loan, for example... who drove the car the most? If it's a credit card debt, think of who made the most charges or who most used the items that were purchased.
The key in property settlement is to be reasonable. Maybe you can pay off your credit cards by selling your car and getting a less expensive model. Money is often tight during a divorce, and it's possible you'll need to make some sacrifices. It's important to look at the big picture, to decide what you can afford to keep and what makes the most sense financially. It's critical to plan and keep track of everything. If your spouse handled all your finances during the marriage and you were in the dark, you'll need a complete inventory of all your assets, debts, and expenses, so you can quickly get up to date.
Monday, December 24, 2007
Common Questions on Defacto Law in NSW
This information was obtained from the NSW Law Society Free, Quick Information Service, for more detailed information you should see a solicitor.
De facto relationships?
Some common questions about defacto relationships:
Will the law recognise my de facto, or close personal relationship?
The law will recognise your relationship if you and your partner:
* live together in a de facto relationship (either opposite-sex or same-sex relationship) as partners on a domestic basis for a qualifying period; or
* have a close personal relationship which is between two adult persons, whether or not related by family, where one or other provides domestic support and personal care, which must not be for fee or reward.
In some areas of law in NSW your rights as a de facto spouse will be the same a partner in a regular marriage relationship. For example, you may have rights under the Wills, Probate and Administration Act to a share of the intestate estate of your deceased partner, to make a claim under the Family Provision Act or to receive compensation under workers compensation law if your de facto spouse dies in the course of employment. You may also have rights under the Commonwealth Social Security Act.
Am I entitled to a property settlement?
The Property (Relationships) Act (formerly called the De Facto Relationships Act) gives important rights to de facto partners and people in close personal relationships. The law gives such partners rights which are similar to those of a married partner claiming property settlement, regardless of whose name the property is in. However, you usually need to show that you have lived together for at least two years. If your relationship has lasted less than two years, you may claim if:
* There is a child of the relationship, or
* You are caring for a child of the other party, and the failure to make an order would result in serious injustice to you, or
* You made substantial contributions (financial or personal) for which you will not receive adequate compensation if the court does not make a property order, and the failure to make an order would result in serious injustice to you.
In deciding on the division of property, a court would take into account the financial and non-financial contributions of each partner – for example the labour involved in renovating property or answering the phones for a business – and the contributions of each partner as a homemaker and parent.
The property relevant to a claim may include real estate and personal property, such as funds held in a company, or damages payable to your partner as a result of court proceedings, but generally not superannuation owned by the other party. However, superannuation and property owned by a discretionary trust will often be a financial resource and relevant to a property settlement.
Applications for property division must be made to the Supreme Court, District Court or the Local Court within two years of the end of a relationship. The maximum you can claim in the Local Court is $60,000, unless the parties agree to the Local Court hearing
a claim for a higher amount. The maximum you may be able to claim in the District Court is $750,000. In some circumstances you may be able to apply outside the two-year period if the court gives permission. It is best for the claim to be made within two years of the end of the relationship.
Can I claim maintenance?
Under the Property (Relationships) Act there are limited rights to claim spousal maintenance.
You must show either that you cannot work because of the care of a child under 12 of the relationship or of the other party, or the care of a physically or mentally handicapped child under 16, or that you have lost your earning capacity as a result of the relationship and that you are prepared to undergo training or further education to improve your earning capacity.
A court would consider your partner’s ability to pay when determining how much maintenance you may receive. Your entitlement will cease if you marry or enter into another de facto relationship.
Child support
A carer of a child is entitled to child support under the Child Support (Assessment) Act from the other parent of the child, irrespective of marriage. Scientific tests can accurately establish whether a man is the father of a child and these tests can be ordered by the court depending on the circumstances.
Who will the children live with?
The Family Law Act deals with children’s matters irrespective of whether or not the parents were ever married. The best interests of the child will be the most important consideration for the court.
As far as practicable, parents are encouraged to share parental responsibilities and to define their own individual arrangements. If they cannot do so, either party can apply to the court for orders about where the child will live, about the child spending time with each parent and sometimes grandparents and other family members, and about other matters such as schooling and religion.
Domestic relationship termination agreements
The law recognises that many couples choose to enter into financial agreements before they marry or before or after they enter into a de facto or personal relationship. These agreements are recoginised under the Property (Relationships) Act.
Before or during the relationship you may enter into a contract which decides how financial and other affairs, including maintenance and property rights, will be arranged. If you decide to make one of these agreements, you must consult a Solicitor because to be enforceable, the agreements must comply with very precise rules requiring independent legal advice for both parties.
Can I claim social security benefits for my de facto relationship?
De facto partners have the same rights to social security benefits as legally married partners. If you have separated from your partner and have dependent children, you may qualify for a Commonwealth benefit. You may be eligible for other benefits in the event of your partner’s death.
What rights do I have in circumstances of domestic violence?
The law will protect you if you are subject to violence or harassment even if your partner owns the house you live in. The court may grant a restraining order preventing the violent partner from entering your home or workplace. The court will also protect a child of a de facto relationship in the same way. In the event of an emergency you should can the police or the Local Court.
De facto relationships?
Some common questions about defacto relationships:
Will the law recognise my de facto, or close personal relationship?
The law will recognise your relationship if you and your partner:
* live together in a de facto relationship (either opposite-sex or same-sex relationship) as partners on a domestic basis for a qualifying period; or
* have a close personal relationship which is between two adult persons, whether or not related by family, where one or other provides domestic support and personal care, which must not be for fee or reward.
In some areas of law in NSW your rights as a de facto spouse will be the same a partner in a regular marriage relationship. For example, you may have rights under the Wills, Probate and Administration Act to a share of the intestate estate of your deceased partner, to make a claim under the Family Provision Act or to receive compensation under workers compensation law if your de facto spouse dies in the course of employment. You may also have rights under the Commonwealth Social Security Act.
Am I entitled to a property settlement?
The Property (Relationships) Act (formerly called the De Facto Relationships Act) gives important rights to de facto partners and people in close personal relationships. The law gives such partners rights which are similar to those of a married partner claiming property settlement, regardless of whose name the property is in. However, you usually need to show that you have lived together for at least two years. If your relationship has lasted less than two years, you may claim if:
* There is a child of the relationship, or
* You are caring for a child of the other party, and the failure to make an order would result in serious injustice to you, or
* You made substantial contributions (financial or personal) for which you will not receive adequate compensation if the court does not make a property order, and the failure to make an order would result in serious injustice to you.
In deciding on the division of property, a court would take into account the financial and non-financial contributions of each partner – for example the labour involved in renovating property or answering the phones for a business – and the contributions of each partner as a homemaker and parent.
The property relevant to a claim may include real estate and personal property, such as funds held in a company, or damages payable to your partner as a result of court proceedings, but generally not superannuation owned by the other party. However, superannuation and property owned by a discretionary trust will often be a financial resource and relevant to a property settlement.
Applications for property division must be made to the Supreme Court, District Court or the Local Court within two years of the end of a relationship. The maximum you can claim in the Local Court is $60,000, unless the parties agree to the Local Court hearing
a claim for a higher amount. The maximum you may be able to claim in the District Court is $750,000. In some circumstances you may be able to apply outside the two-year period if the court gives permission. It is best for the claim to be made within two years of the end of the relationship.
Can I claim maintenance?
Under the Property (Relationships) Act there are limited rights to claim spousal maintenance.
You must show either that you cannot work because of the care of a child under 12 of the relationship or of the other party, or the care of a physically or mentally handicapped child under 16, or that you have lost your earning capacity as a result of the relationship and that you are prepared to undergo training or further education to improve your earning capacity.
A court would consider your partner’s ability to pay when determining how much maintenance you may receive. Your entitlement will cease if you marry or enter into another de facto relationship.
Child support
A carer of a child is entitled to child support under the Child Support (Assessment) Act from the other parent of the child, irrespective of marriage. Scientific tests can accurately establish whether a man is the father of a child and these tests can be ordered by the court depending on the circumstances.
Who will the children live with?
The Family Law Act deals with children’s matters irrespective of whether or not the parents were ever married. The best interests of the child will be the most important consideration for the court.
As far as practicable, parents are encouraged to share parental responsibilities and to define their own individual arrangements. If they cannot do so, either party can apply to the court for orders about where the child will live, about the child spending time with each parent and sometimes grandparents and other family members, and about other matters such as schooling and religion.
Domestic relationship termination agreements
The law recognises that many couples choose to enter into financial agreements before they marry or before or after they enter into a de facto or personal relationship. These agreements are recoginised under the Property (Relationships) Act.
Before or during the relationship you may enter into a contract which decides how financial and other affairs, including maintenance and property rights, will be arranged. If you decide to make one of these agreements, you must consult a Solicitor because to be enforceable, the agreements must comply with very precise rules requiring independent legal advice for both parties.
Can I claim social security benefits for my de facto relationship?
De facto partners have the same rights to social security benefits as legally married partners. If you have separated from your partner and have dependent children, you may qualify for a Commonwealth benefit. You may be eligible for other benefits in the event of your partner’s death.
What rights do I have in circumstances of domestic violence?
The law will protect you if you are subject to violence or harassment even if your partner owns the house you live in. The court may grant a restraining order preventing the violent partner from entering your home or workplace. The court will also protect a child of a de facto relationship in the same way. In the event of an emergency you should can the police or the Local Court.
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