What is a property settlement and can you get it done before you divorce?

If you are separated and heading for divorce, consider finalising your property settlement as soon as possible to secure the best outcome for your future.

What is property?

Property refers to all your assets, financial resources, superannuation and liabilities. The Family Law Act defines property as being the ‘net asset pool’ which can include:

  • matrimonial home
  • investment properties
  • bank accounts
  • family Trusts
  • jointly owned assets
  • superannuation
  • shares/interests in a business or companies
  • cars and/or any other vehicles
  • debts

Why is it better to finalise your property settlement before you divorce?

In Australia, you cannot file an application for divorce unless you have been separated for 12 months. However, you can commence and/or finalise a property settlement at any time after you separate.

We strongly recommend people finalise their property settlement as soon as possible after separation and before getting a divorce order. This is because your assets at the date of settlement or trial are what is taken into consideration rather than your assets at the date you separate.

Because it is likely each party will continue with their lives after separation and in doing so, may buy or sell assets, unless there has been a property settlement, these transactions will affect both parties even though the couple is separated.

Are married and de facto relationships treated the same?

If you are married, you must apply for a property settlement within a year of a divorce order becoming final. A divorce order becomes final one month and one day after the date on which the order was made.

If you are in a de facto relationship, you must apply to the court for your property settlement within two years from the date of separation.

Failure to commence proceedings in the court within these timeframes means you will need to seek permission from the court to commence proceedings out of time. It is at the court’s discretion as to whether or not they grant permission and they will only do so in limited circumstances.

How is property divided?

When the court is deciding on a just and equitable division of the relationship property, each case is treated as unique. The court will consider the contributions each person has made to the relationship (both financial and non-financial), together with each person’s future needs.

Both parties will need to disclose all of their assets and the court has the discretion to split any of the property even if it’s under one party’s name. The factors the court considers when deciding are:

  • future financial needs of each party
  • earning capacity of each party
  • whether they have children and who cares for them
  • age
  • health
  • any other special circumstances
  • whether the division would be practical and in the party’s interests.

How is a property settlement finalised?

Property settlement can be finalised either by:

  1. an application for consent orders (which is filed in the Family Court) and orders are made by the court
  2. a binding financial agreement (which is not filed in court).

 

Cornerstone Law Offices can help you understand your entitlements, negotiate property settlement with your former spouse or partner, and obtain a just and equitable outcome. Call us on 1300 267 637 for a complimentary consultation or contact us by clicking here.

What happens to your assets if you die without a will?

If you die without a will, you are said to have passed away ‘intestate’. This means your estate (your assets) will be administered and distributed according to Queensland’s laws of intestacy.

Having a will allows you to legally protect your spouse, children, other family members and your assets. It also allows you to appoint an executor to administer your estate and to have control over how you want your estate to be distributed.

What is an asset?

An asset is anything you own that has a monetary value. An asset can be the home you live in, other properties you own, motor vehicles, investments, art collections, personal belongings, cash, bank accounts balance, superannuation, shares, and the list can go on. Your estate lawyer will be able to help you identify your assets during your estate planning discussion.

What makes a will current and valid?

A will documents the wishes you want to come into effect when you die. A valid will is your last written wish which is witnessed by two people while you have full mental capacity. All three parties need to be physically present to sign and witness the document. Your lawyers can also witness the documents. The costs of administering an estate where there is a current and valid will can be significantly less than where there is no will, or where the will is not valid.

Who administers my estate?

If you pass away intestate, an ‘eligible person’ must apply to the Court for a grant of Letters of Administration enabling them to become the legal representative of your estate. This grant will appoint someone as the administrator of your estate so they can deal with your assets (i.e. bank accounts etc) to finalise your estate.  The administrator will be responsible for paying off debts and ensuring the estate is divided appropriately in accordance with the intestacy rules.

In order of priority, the following people are eligible to apply to the Court to be appointed as the administrator of your estate if you die without a will:

  1. surviving spouse (including a de facto partner)
  2. children
  3. grandchildren or great grandchildren
  4. parents
  5. brothers and sisters
  6. nephews and nieces
  7. grandparents
  8. uncles and aunts
  9. first cousins
  10. anyone else the court may appoint.

How will my assets be distributed?

Part 3 of the Succession Act 1981 (Qld) sets out the entitlements of the next of kin of an intestate person. How an intestate estate is distributed depends on the circumstances of the deceased.

If you pass away intestate, your estate will be distributed to the closest next of kin, first being your spouse (including a de facto partner) and then your children.

If at the time of passing you had a spouse, with no children, then the whole estate will go to the spouse.

If you had a spouse, and have children, then your spouse will receive the first $150,000 of the estate and all household goods. The remainder will then be split equally between the spouse and your children.

If you are single and have children, the children will receive the balance of the estate in equal shares.

If you have neither a spouse nor children, then the estate will be distributed to the following people in the following order:

  1. parents
  2. siblings, nephews and nieces
  3. grandparents
  4. uncles, aunts and first cousins
  5. The Crown.

 

Cornerstone Law Offices can help you with all of your needs in regards to wills & estate planning and estate administration of deceased estates. Call us on 1300 267 637 for an initial complimentary consultation (or contact us by clicking here).

An important message for this holiday season

An important message from Prav for this holiday season…

 

A Christmas message from Prav

Wishing you and your loved ones a very merry and safe Christmas, and all the very best for 2019!

 

Merry Christmas from all of us

What to look for when engaging an estate administration lawyer

Wills and estate administration is a highly litigated area of law requiring solicitors to be extremely vigilant.  A solicitor failing to ask a relatively mundane question can lead to terrible consequences for a client and beneficiaries of a will such as a beneficiary not acquiring their beneficial interest or ending up in a costly litigation.

The law is always changing

Estate laws are constantly changing because of new court decisions and amendments to old provisions. This area of law intersects with multiple other areas of law. For example, an ex-spouse may have a claim to the testator’s estate pursuant to family laws; a beneficiary may not be allowed to acquire corporate interests without having a shareholder vote pursuant to corporation laws; or a beneficiary may end up having to record his/her inheritance as an income for the year causing him/her to pay more capital gains tax pursuant to tax laws.

What to expect from your solicitor

When taking instruction, a solicitor should:

  • make detailed notes
  • determine and review any previous wills
  • determine the assets/liabilities/creditors
  • determine locations, identities and any aliases of appointers, trustees and beneficiaries
  • investigate the client’s capacity and level of urgency to make a will
  • verify the types of title ownership over assets
  • advise the client on the rule of ademption and pecuniary legacies
  • advise the client to speak to an accountant in relation to tax consequences
  • provide advice on the best and worst outcomes
  • ask probing questions to investigate the client’s family structure, make sure the estate is solvent, funeral arrangements, superannuation, life insurance, discretionary trusts, companies, enduring Power of Attorney, Advance Health Directives
  • advise on minimising risks from potential people having a claim to their estate regardless of being a beneficiary named in the will.

Solicitors are officers of the Court
As an officer of the Court, solicitors have a duty to collect and record all evidence that is relevant, not only evidence which may support the validity of the will, but also evidence that may cast doubt upon it. Solicitors must strive to remove ambiguity from wills and record all instructions and evidence. Where a person lacks testamentary capacity, s.21 Succession Act 1981 (Qld) may allow the Court to authorise a will to be made, altered or revoked on behalf of the incapacitated person.

Cornerstone Law Offices can help you with all yours and your loved ones Wills & Estate planning and Estate Administration of deceased estates. Call us on 1300 267 637 for an initial complimentary consultation (or contact us by clicking here).

Five Myths of Divorce and Separation – This Advice Will Make You Rethink Your Approach

We often hear that individuals know what to expect because a friend, a colleague or a family member went through a separation. More often than not, the advice they have been given is incorrect or misleading.

Every family law matter is different, and it is important that people facing such a situation seek specialist advice to enable them to make informed decisions in the future. Separation is confusing enough as it is without incorrect and misleading information from others.

MYTH #1 – All relationships end in a 50/50 property division

THE REALITY

There is no universal equation that is applied in a property division. Property can be divided according to a number of factors. These include:

  • The length of the relationship
  • The financial (direct or indirect) contributions of both parties
  • The non-financial contributions of both parties – homemaker and carer roles
  • The current and future needs of both parties – age and health of each individual

Because there are so many different factors to consider, the reality is that a 50/50 property division is actually rare.

MYTH #2 – You have to be divorced to do a property settlement

THE REALITY

You do not have to be divorced to do a property settlement. However there are time limits depending on whether the settlement is for a defacto relationship or a marriage.

Time Limits:

  • Marriage: 12 months from the date the divorce order takes effect
  • Defacto: 2 years from the date of separation

Once a divorce order is made, there is a 12-month time limit for you to commence proceedings for a property settlement. The 12-month time limit starts from date the divorce order comes into effect.

In the case of de facto couples, the time limit to commence property proceedings is two years from the date of separation.

If you do not commence proceedings within these time frames, you will need to seek permission from the court to commence proceedings. It is the Court’s discretion as to whether they grant permission or not and they will only do so in limited circumstances.

MYTH #3 – Assets within companies, trusts and superannuation funds are excluded from a property settlement

THE REALITY

The definition of property in Family Law is wide. The important word is control.

Property includes all assets that the parties have legal or equitable interest in, whether in their sole name, joint names or with a third party.

Superannuation comes into this definition and can be split so that some of it is given to the other spouse.

The issue of whether trust and/or companies are included in that definition can be quite a technical area. It is wrong for people to think it is possible or even easy for a party to hide assets by registering in the name of company or a trust. Just because it is not in your name does not mean it does not form part of the asset pool available for division.

The issue comes down to whether a party has control of the assets. An indicator of control is whether a party can decide what happens to those assets or whether they can appoint or remove trustee/s and beneficiaries.

MYTH #4 – All family disputes involving lawyers go to court  

THE REALITY

  • If settlement or agreement is the primary goal, then this can be established without the need to go to court as long as both parties can come to an agreement
  • Court should be seen as a last resort

Where possible, resolution through mediation or by negotiations with the other party should be made, thereby saving both parties in legal fees and time and allowing each to move on with their lives.  However, sometimes where further negotiations or mediation will not advance the matter in any substantial way, commencing court proceedings will be necessary to come to a resolution of the matter.

MYTH #5 – If you have agreed on a property division, you must involve lawyers

THE REALITY

There are ways to formalise an agreement that doesn’t necessarily involve lawyers. It is possible to do this with either of the following:

  1. Consent Orders
  2. Binding Financial Agreement

Consent Order means that the court has considered and formalised the agreement. Consent Orders can be done without lawyers.  However, we would strongly urge you to have a lawyer specialising in family law check over the documents to make sure they have been drafted correctly. This is particularly important in relation to transfer of property otherwise you risk incurring stamp duty and/or losing other advantages of formalising the agreement.

A Binding Financial Agreement effectively is a contract between the two estranged spouses. For this sort of agreement, you must involve lawyers for it to be enforceable. Independent legal advice must be obtained by each party and the lawyer must sign off on the agreement otherwise, to put it frankly, it is not worth the paper it is written on.

If you are going through a divorce or separation, and need help with any of the above, please contact Cornerstone Law Offices by on phone: 1300 267 637 or by email at: info@cornerstonelawoffices.com.au

 

GPS tracking as a bail condition

As of 31 March 2018 Queensland courts can now compel a person, accused of committing serious domestic violence offences, to be fitted with a GPS tracking device, as a condition of their bail.

This initiative was one of the recommendations of the report entitled, ‘Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland’.

The Court can impose this bail condition on any person, who might be granted bail. It is not specifically restricted to domestic violence related offences.

The fundamental purpose of fitting the tracking device to a person’s ankle, as a condition of their bail, is to allow police to locate and monitor the wearer twenty-four hours a day, seven days a week. Police will be able to know where and when the wearer goes to a location and it is regarded as a deterrent so that the wearer will not further breach an existing protection order, such as one providing an exclusion zone to protect the alleged aggrieved.

This tracking device could be fitted to a person, merely on the word of one person against their partner or former partner, without evidence having been formally tested by way of a hearing.

It must be said, the fitting of the device alone is not an adequate risk minimisation measure, it is merely a warning device and requires the Police or another authority to monitor the device and respond.

As a further condition of the wearer’s bail, Police can enter their premises to inspect equipment necessary for the device’s operation, without a warrant or permission from the wearer. If the wearer is to undergo a medical procedure, he/she will have to seek a bail variation from the Court, prior to the procedure, to permit the removal of the device. The wearer has to also inform the Police, at least two business days before flying as to why they will be flying, when they will be leaving and returning.

These devices are currently in use, being fitted to parolees or prisoners, who are subject to a continuing supervision order, as a dangerous prisoner. The expansion of the program means, people on bail, not yet convicted of having committed any offence could be required to wear the same, often visible device.

These devices are not inexpensive. In 2017 the Queensland government committed $265 million dollars over six years to fund the tracking of 500 parolees and 91 high risk sexual offenders. More of these devices will need to be purchased and maintained as the program is extended to include wearers, who are required to wear the devices as a condition of their bail.

These devices are not without problems in operation. GPS tracking relies on line of sight to several satellites, and various environmental factors can adversely impact on the signal quality leading to a loss of signal. Wearers must regularly charge the device, at least two hours of continual charging daily and carry their mobile telephones to resolve technical issues when required.

If you have been charged with a serious domestic violence offence, Cornerstone Law Offices can help.

For more information on how we can help you, contact Cornerstone Law Offices on:

Phone: 1300 267 637

info@cornerstonelawoffices.com.au

 

 

 

Should you and your ex make a Binding Child Support Agreement?

Binding Child Support Agreements are agreements about the payment of Child Support from one parent to the other to support children.  Much like an assessment for Child Support from the Child Support Agency, there can be an agreement between the parents for the payment of periodic child support, but there are also provisions for non-periodic payments to cover things like, school uniforms and fees, mortgage payments, or health benefits.

The option for non-periodic payments is not a good option for those who are concerned that the paying parent will not pay, as the Child Support Agency will not collect or follow up on the non-payment of non-periodic payments.

There are two kinds of Child Support Agreements: Limited Agreements and BindingChild Support Agreements.

Limited agreements are simpler and do not require the provision and certification of Legal Advice.  The Agreements also have an automatic option to end them after three years, and a ‘notional assessment’ by the Child Support Agency may trigger the agreement to end sooner than three years.

All Child Support Agreements contain the above mentioned ‘notional assessment’.  This is an assessment made by the Child Support Agency of the amount of child support that would be due if the Child Support Agreement was not in place.

In terms of a limited agreement, if this notional assessment changes significantly, the Limited Agreement would come to an end.  Things that might affect the notional assessment are things like, care arrangements or the financial position of the paying parent. These types of events will not affect a Binding Child Support Agreement.

In order for a Child Support Agreement to be Binding, both parents need to get independent legal advice and each of their lawyers needs to sign a certificate stating that he/she gave that parent legal advice about the Agreement. A Binding Child Support Agreement does not automatically terminate after any period of time – unless written into the Agreement.  In addition, no changes in circumstances will affect the payment of Child Support under the Agreement, unless provided for in the Agreement.  A Binding Child Support Agreement can be set aside in ‘exceptional circumstances’ that will cause the applicant or child to suffer hardship.

Binding/Limited Child Support Agreements can completely replace an assessment by the Child Support Agency for the provision of periodic payments.  However, they can also operate alongside an assessment from the Child Support Agency. This means, the Child Support Agency can make an assessment for periodic payments, and your Child Support Agreement can provide for an additional non-periodic payment.  You can also agree to non-periodic payments that occur regularly that reduce the amount of your periodic payments.  With Binding Agreements, parties aren’t as limited as they are with an assessment from the Child Support Agency.

If you and your co-parent are thinking about entering into a Binding or Limited Child Support Agreement, Cornerstone Law Offices can help.  We can draft the document or give you advice on one that has been drafted by the other parent’s lawyer. For further information and legal advice about your family law matter contact Cornerstone Law Offices. At Cornerstone Law Offices, our lawyers will provide you with qualified advice so that you can make informed decisions and move on with your lives.

For more information on how we can help you, contact Cornerstone Law Offices on:

Phone: 1300 267 637

info@cornerstonelawoffices.com.au

 

 

 

How to prepare for a Family Report Interview

What is a Family Report?

A Family Report is a document prepared by a Family Report Writer or Family Consultant. It provides information about you, your children and your family to assist the Judge and the parties make decisions about what arrangements are best for the children. Family Consultants are qualified counsellors or psychologists, with skills and experience working with children and families.

How is a Child Inclusive Conference different from a Family Report?

A Child Inclusive Conference is a preliminary and limited assessment, intended to assist the Judge to make shorter term orders, and to decide on the best way for the matter to proceed. Often, these reports are quite brief and are in the form of a memorandum rather than a lengthy report. A Judge may refer a matter to a Child Inclusive Conference when the issues required to be determined are unclear.

What should I do to prepare for the Family Report Interview?

The Family Consultant will ask you questions about your family situation and the issues in dispute before the Court. The Family Consultant may also ask questions about the relationships you have with the children, your former partner and/or your views about parenting. As hard as it is, try and stay relaxed during the Family Report Interview. To help you prepare, we have devised the following three-step process to assist you with your Family Report Interview:

1. Read your Affidavit Before your Family Report Interview, we recommend that you read your Affidavit and any other Affidavit material that has been filed in your proceedings. Reading your affidavit prior to the interview will assist to jog your memory about certain events that the Family Consultant may wish to discuss with you.
Reading your affidavit prior to the interview may also ensure that the parenting arrangements you discuss with the Family Consultant are consistent with the parenting orders you have sought in your court documents.

2. Remain child focused – It’s not about you, it’s about what’s best for your childrenIt is important to have clear in your mind what arrangements you want for your children and why those arrangements are best for your children. Remember, the Judge must consider what arrangements would be best for your children not only what arrangements would be convenient for you or what you believe you are entitled to.

During the Interview, the Family Consultant may also ask about the other parent’s role and relationship with the children. Expressing support for time and communication with the other parent shows that you are child focused.

3. Be mindful of your behaviourThe Family Consultant may also be observing the interaction between you and the children and the other parent.

It is a good idea to demonstrate to the Family Consultant that you can look after the children’s physical needs. We suggest that you bring food, drinks and toys to keep the children entertained. You may also consider having in mind a play activity that you can do with the children as the Family Consultant may want to observe the children spending time with you.

It is important that you are mindful of how you speak to and about the other parent and the language you use. For instance, greeting the other parent upon arrival for the appointment may demonstrate to the Family Consultant that you can communicate with the other parent. Being able to communicate with the other parent will assist your case and benefit your children.

The Family Report Interview is an opportunity to speak about the issues you consider are important for the children so think in advance about the issues you wish to raise at the interview and any questions you may have for the Family Consultant Remember, your interview with the Family Consultant is not confidential or private. Any information you discuss with your Family Consultant may be reported to the Court.

For further information and legal advice about your family law matter contact Cornerstone Law Offices. At Cornerstone Law Offices, our lawyers will provide you with qualified advice so that you can make informed decisions and move on with your lives.

For more information on how we can help you, contact Cornerstone Law Offices on:

Phone: 1300 267 637

info@cornerstonelawoffices.com.au