At Tonkin Legal, we understand that many people are reluctant to get lawyers involved when they are separating from their partner - so we've put together this post to explain why this is so important in protecting your interests by answering some questions we are often asked about this.
Q. Do I really need to see at Family Lawyer?
A. The short answer is yes. It’s a complicated area of law, and of human relations. You go to your doctor if you’re sick, to the dentist if you have a toothache, you take your pet to the vet. Why would you try to do Family Law yourself?
Q. But our case is simple. Just the house, some super, a couple of cars. Surely we can sort this out ourselves?
A. Okay, but do you know what the house is worth? Will you keep it? If so, will you pay out your partner (or vice versa)? Or will it be sold? How will you know what’s a fair price to pay if you are buying your partner’s share, or how much you should get if the house is being sold?
Q. My partner has a lot more superannuation than me, but they say “I earned my super – don’t touch it!” I think that’s fair. Isn’t it?
A. The law doesn’t think it’s fair. In most cases, the partner with the larger super will be required to transfer enough to the other’s fund so that they have equal balances. How will you broach this conversation with your partner and ensure you receive what you are entitled to?
Q. We have three children, my partner worked throughout our relationship while I stayed home and looked after the kids, and they will live with me. So, we split out assets 50/50 – right?
A. You can do that if you want to, but the law says there should be a financial adjustment in favour of the parent who is going to have the main care of the children after the separation. How do you know you are getting your fair share? Also, do you know if you are entitled to spousal maintenance?
Q. Spousal Maintenance – I’ve never heard of that. What is it?
A. While most people know a bit about child support and property settlement, most have never heard of spousal maintenance. If one partner is earning a good income and the other makes a lot less, or isn’t working, because they are caring for children or have health issues, they can ask that their partner pays them spousal maintenance, either until they can work and earn enough to support themselves, or longer if they can’t work. Spousal maintenance can be paid weekly or monthly or added to a property settlement as a lump sum.
Q. We can make our own arrangements about the children without getting a lawyer involved!
A. Of course. But what if you and your partner have an informal arrangement about when the children will spend time with both of you - that’s all going along nicely then something goes wrong? You have a disagreement about when you will hand them over, a dispute about school holidays, Christmas? Or worse, they want to move with the kids to another suburb, state or even country without your permission?
If that happens, and you don’t have court orders about the children, then you will have to rush off to court, with the time and emotion that involves, to sort it all out (even if you have a Parenting Plan – they aren’t legally enforceable). Much better to agree about the children, and get your Family Lawyer to draw up consent orders which are sent to the Court to formalise your agreement.
Q. We can agree how to split our assets between us. Getting a lawyer involved will only make this conversation harder!
A. Often, getting a lawyer involved actually makes the conversation easier and it can take a lot of the emotion out of the discussion. It will also ensure you don't inadvertently agree to a settlement that is unfair or less than you are entitled to. This might upset your partner, but, when you are separating, you need to be focused on protecting your best interests and those of your children - and this is what your lawyer is here to help you do.
You also need to consider what happens if you sell the house or transfer it to one of you without a legal financial settlement and something unexpected happens. Something like you win Tattslotto (yes, it happens), or Mum dies and leaves you an inheritance. Your ex can’t claim any of that – right? Wrong! They can. There are exceptions, if you are divorced, but why take the risk when your Family Lawyer can organise a proper, legal settlement which protects you both.
Q. But won’t a Family Lawyer be expensive?
A. At Tonkin Legal, we offer a fixed fee pre-separation advice service for those that are thinking about separating from their partner. For $450 (including GST) we will help you develop a plan for separating from your partner that is fair and best protects your best interests and those of your children.
If you are already separated and want to sort out custody, maintenance and your property settlement, we will discuss costs with you at our first meeting, so you have a clear idea of what to expect - as you can appreciate, the cost depends very much on your individual situation. This meeting costs $450 (including GST).
Certainly, having to go to court can be costly, but look at seeing a Family Lawyer as like an early diagnosis by your doctor of an illness – some advice at an early stage, even if you are just thinking about separating, may well result in you saving a lot of money by not having a protracted dispute with your partner, which can be traumatic, for you and for your children.
Q. Back to the question at the start – “I don’t need to see a Family Lawyer, do I?
A. The answer, for all the reasons above, is that it’s a good idea. Our family law team (pictured) is here to help you make this process as painless as possible. Please give us a call to book an appointment on (03) 94359044. Now that COVID restrictions have eased, we are back working from our Greensborough office - but we can also organise appointment via Zoom or telephone if you prefer.
