16 Nov The Top 10 Things To Put On Your “To Do” List If You’re Separating
The breakdown of a relationship, whether marital, de facto or same sex, is a very tough event. It can be very hard to concentrate on what you should do, especially early on when emotions are raw and tempers can sometimes be frayed.
Like any challenging time in life, it helps to focus on the positives and to develop an action plan. Some people can be aided by lists of things they should do.
If you are in this situation, or you feel that time may come at some time in the foreseeable future, then please read on to discover what we feel are the top 10 things to put on your “to do” list if you are going to separate from your spouse (not necessarily in order of importance because they are all equally important):
1. Get some counseling, marriage or otherwise.
Are you really sure you want to separate? Seek marriage counseling before you make that giant leap from being unhappy together to final, no-turning-back separation. You need to be sure that the relationship has suffered an irretrievable breakdown before you can get your head around physical and financial separation and the change in living arrangements of the kids if you have them. Once you start the following 9 things in your “separation to do list”, it is very hard to go back to a happy marriage or relationship! So whatever you do seek counseling first, even if it is for yourself in circumstances where your partner is not willing to participate.
2. Where are the kids going to live?
The law says that the best interests of children must be taken into account at all times particularly in the event of separation. This is usually served by them having a close and meaningful relationship with both parents unless there are problems such as family violence and abuse. But you can’t split kids down the middle and the Family Courts do not usually condone the splitting of siblings, so a decision needs to be made early on as to who the children are to live with formally unless the parties come to an agreement (provided it is workable and in the children’s best interests) to share the care of the children and effectively have them living in two separate households.
3. Make a decision about your living arrangements.
Should you stay or should you go? Possession is definitely NOT nine tenths of the law in family law. If you cannot stand living with your partner and your partner doesn’t want to move out of the house, that’s okay because the law will still recognize your legal entitlements – particularly if you are looking to achieve a cash settlement rather than keep the house. If your partner decides to leave, that is good too because there is less disruption to you and the children if you have them, provided you are able to maintain the mortgage and other household liabilities (and even if you cannot, it is possible to require your partner to contribute to such liabilities as part of his or her maintenance obligations). If your “endgame” is to keep the house, we recommend staying put as tactically you will get a “home ground advantage” by doing so.
4. Furniture and personal effects.
If you are leaving the family home, it usually means for good, so make sure you take everything you need by way of furniture, appliances, clothes, jewellery, gardening implements etc. We’ve often dealt with situations where the departing spouse has cleaned out the spouse who’s staying put. Unfortunately, there is nothing much that can be done to stop this because the Family Courts will generally consider all furniture and personal effects to be jointly owned and therefore moveable by either party. So if you’re the departing spouse choose the furniture and personal effects carefully before you decide to leave. Equally, if you’re the spouse who’s staying you are able to change the locks to prevent the departing spouse from gaining re-entry – even if the house is in joint names. While possession is not nine tenths of the law in family law, when it comes to moveable items that you really want and need, we definitely think it is better to have than to have not.
5. Gather all your legal and financial documents and put them in order.
It is very important that you know where you stand in terms of the assets and liabilities of the relationship. The Family Courts do not make a distinction between who owns what as generally they consider all assets of the parties assets of the relationship. You therefore need to know what your partner’s financial position is as well as yours so that you can make informed decisions moving forward. Important legal and financial documents include your marriage certificate, taxation returns, settlement statements on the sale and purchase of property, bank statements etc.
6. Divide joint bank accounts and open your own account or accounts.
If you have joint bank accounts with your spouse, there is nothing to stop you from clearing out or, perhaps less provocatively, withdrawing a proportion (say one half) of the funds contained in the accounts, assuming only one signature or authority is required to do so (and your spouse does not consent which is often the case). You will need the money to assist you with the move if you are leaving the family home, and you will certainly need it if you are staying in the home to help you make do with things like mortgage payments and household expenses.
7. Check your superannuation, life insurance and other death benefits.
If you have nominated your spouse as a beneficiary of any of these, you will need to change this immediately. Where possible we suggest that you take all necessary steps to ensure any such benefits pass to your estate or your children in the event of your death.
8. Get a new will and power of attorney as part of an overall revised estate plan.
You need to have a will in the first place but understand that separation does not change gifts in a will. So if your will says “I appoint my spouse as my executor and give all my estate to my spouse” then, guess what, if you die your spouse will make decisions regarding your estate and get the lot which is probably not what you would want to happen having just separated from your spouse. As we have urged previously in our blog, avoid home made or DIY will kits – seek the advice and assistance of a lawyer or estate practitioner. And get a power of attorney drawn up. If you separate, then become legally incapacitated, your attorney can manage your legal and financial affairs
9. Notify Centrelink and the Child Support Agency of your impending change in domestic arrangements.
If you are receiving any pension or other benefit payments you need to notify Centrelink of your change in relationship status as you will obviously be dealt with differently as a single person. The same applies with the Child Support Agency, if you have children, as the Agency’s role is to collect payments from the non-residential spouse to pay the residential spouse on a means and needs basis.
10. Get legal advice.
This is a no brainer and we’re not just saying so because we’re family lawyers. We have just outlined 9 very important things to do in an otherwise exhaustive and exhausting list of matters you will be confronted with and have to sort out so that you can move on with your life financially and emotionally. Family and relationships law confronts even the most organized and level-headed person with a maze of traps and blind corners. Not getting good legal advice early and throughout the whole process could cost you thousands of dollars in lost entitlements and, even worse, your family life which we think can still be maintained in a mutually respectful, speedy and fair separation and settlement.