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Common divorce mistakes you don’t want to make

By June 10, 2022February 23rd, 2024No Comments

Family law is complex and navigating it can be confusing, which is why people sometimes make mistakes when they are working out their property settlement on separation or divorce. Here are some of the most common divorce mistakes to avoid making.

1. Not finalising your property settlement after divorce

It’s important to understand that simply obtaining a divorce doesn’t in itself sever your financial ties with your ex-partner. The only way to have a completely clean break and go your separate ways financially is to obtain a property settlement. This will also stop future claims being made by either party. If you get a divorce, the important thing to remember is the time limits for finalising your property settlement. If you were married, your property settlement has to be finalised within 12 months of the date of your divorce; for de factos the time limit is within 24 months of separation.

2. Thinking you have to divorce before you can do a property settlement

This is a common divorce mistake. People often believe they must be divorced first before they can obtain a property settlement. However, you can actually apply for and finalise your property settlement at any time before, during or after divorce (bearing in mind the time limits).

3. Not keeping notes or records after your separation

A divorce and a property settlement will involve a lot of documentation.  Whether it’s financial records, tracking expenses or keeping a diary of informal agreements and discussions, keeping accurate notes can be very helpful during your dispute. Remember, it’s better to err on the side of keeping too many notes and records than not enough.

4. Not documenting your property settlement agreement

If you and your ex reach an informal agreement, make sure you draw up a legally binding agreement setting out the terms of your agreement. Don’t make the mistake of relying only on an informal agreement–even if things are currently amicable with your ex, things can and do change. Protect yourself by formalising any agreements you reach with your ex.

You can formalise the agreement by applying for Consent Orders in the Federal Circuit and Family Court of Australia, or you can enter into a post-nuptial Binding Financial Agreement with your ex-spouse. If you can’t agree with your ex, you can apply to the court for financial orders relating to property division or spousal support.

5. Thinking the only asset you have is your house

Although the marital home is usually a divorcing couple’s largest asset, it is important to understand that “property” means any and all assets and liabilities that belong to the couple beyond the home and mortgage. This includes funds in bank accounts, cash, motor vehicles, stocks and shares, loans and credit cards, superannuation and any other income and debts.

6. Not knowing what you want in real terms

Property settlements ultimately result in a percentage split of the marital asset pool. But you may go into negotiations thinking you should get “50%” or “60%” without actually having a clear idea what this represents in practical terms. Both a family lawyer and a financial planner can assist in equating percentages into a division of the actual assets and liabilities (and vice versa, if you have an understanding of the desired asset division and need to translate it into percentages for the purposes of Consent Orders or financial Court Orders).

7. Thinking you won’t get an asset because it’s not in your name

When it comes to a property settlement, it doesn’t matter if assets and liabilities are in one party’s sole name or owned jointly—they will all be included in the marital pool available for division.

8. Feeling you should receive more in a settlement due to your ex’s infidelity

In our no-fault divorce jurisdiction here in Australia, spousal behaviour like unfaithfulness is not considered in a property settlement and there is no opportunity to “punish” a party for bad marital behaviour. The only way a property settlement may be affected by a party’s infidelity is if the party’s behaviour caused wastage of marital funds or assets (such as by paying for hotels to meet a secret lover). It’s best to discuss this with your family lawyer if it may be relevant.

9. Assuming your pre-marital assets are automatically yours to keep in a settlement

The assets that you brought into a relationship may form part of the marital asset pool and be subject to distribution in a property settlement. To ensure this does not happen, your best bet is to enter into a Binding Financial Agreement which defines which assets each of you will keep if the relationship breaks down.

10. Remarrying before a property settlement

Given the delays in the court system, it’s not unusual for divorced parties to enter new relationships while they are still finalising their property settlement from their previous partner. However, new relationships can make things very complex in a divorce, and family lawyers often advise clients to hold off on entering into a new de facto relationship or remarrying if possible. People who intermingle their finances (eg. sharing joint accounts) or jointly acquire assets with a new partner, can be shocked to discover that the new assets can form part of the marital asset pool available for division with the ex-partner. Under the Family Law Act 1975, a new relationship can also affect the ability to receive spousal support (except in special circumstances).

11. Thinking court is the only option

Court is best avoided if at all possible, due to the time delays, cost and the stress involved. Remember that there are a number of alternative dispute resolution processes available to you. Beyond mediation, you might also like to consider collaborative law or arbitration. Alternative dispute resolution is the best way to save money, retain more control, and get your matter finalised much faster than if you proceed with the litigation route.

12. Talking about the divorce with your kids

Avoid discussing your divorce (or your ex) with your kids. This is psychologically damaging for the children and can cause loyalty conflicts and stress. Keep information brief, factual and age-appropriate. You may like to read our blog on how to discuss your family law matter with your children for tips.

13. Listening to well-meaning advice from friends and family

Although your family members or friends may have been through a divorce themselves, no situation is identical. Therefore, despite their best intentions, it’s impossible for them to give you accurate legal advice. Accept the psychological support that an empathetic ear provides, but remember to get your legal advice from a qualified family lawyer.

14. Stuffing up the finances

It’s vital that you stay on top of your financial situation during your property settlement. One of the divorce mistakes that family lawyers see is people making basic money mistakes, for example not preparing a realistic budget demonstrating living expenses, attempting to hide or hoard funds, selling off possessions before a partner is made aware of divorce plans, or overspending from a joint bank or credit card account. People also often fail to consider all of the financial aspects of divorce, including tax implications, investments, and other financial matters.

15. Posting freely on social media

Oversharing about your divorce on social media is another divorce mistake to avoid. Avoid writing anything about your divorce or family law matter in a public forum as this can be illegal, and your posts also have the potential to become evidence in your court matter. Even if you believe it is only your friends who can see your content, remember that friends can share your posts to a wider audience than you intended. It’s best to follow this simple rule: don’t post anything on social media or send any SMS or email that you wouldn’t be happy with a judge seeing.

16. Forgoing legal advice

Yes, a do-it-yourself divorce is possible as applying for a divorce is a fairly straightforward matter. But a property settlement is much more complex and often quite technical, also having to comply with the Family Law Act 1975 to be a legally binding agreement. Getting advice from a qualified lawyer means you will understand your legal rights and obligations as well as all your options before you go ahead and finalise any agreement or sign anything.

17. Being nasty to your ex

Divorce is undoubtedly an emotional time but do your best to avoid engaging in high conflict exchanges with your ex, whether in person or by phone or via written communications. Angry messages back and forth will only prolong the dispute and risk increasing the legal costs, aside from potentially being able to be used against you in a court. If you communicate via email, consider downloading an app that screens your messages for inflammatory content and prevent you from sending things you’ll later regret.

18. Destroying trust completely

Untangling your shared life involves a great deal of honesty, not least because the court system’s duty of full and frank disclosure demands it. But aside from being open about your finances for the purposes of your property settlement, certain other behaviours can also erode trust and lead to a deterioration in civility. Don’t make the mistake of behaviours such as: slowly moving your possessions of out of the home to avoid your partner getting wise to your divorce plans;  establishing a new living arrangement before your partner even knows you want to leave the relationship; secretly changing bank accounts or modifying other financial arrangements; disparaging your partner to friends and family; refusing to compromise on anything; trying to use the kids to hurt your ex; and hiring the kind of aggressive divorce lawyer who boasts they will bury your ex.

19. Refusing to attempt mediation

Mediation is a prerequisite before litigation can take place when children are part of the equation. And with recent changes to the law, making “genuine steps” to resolve your financial dispute outside of court is also necessary before court applications can be made for financial orders. A trained mediator is invaluable in helping work out property division, assisting you to narrow the issues in dispute and helping parents establish healthier co-parenting relationships. There are limited circumstances in which you can forego mediation (such as if family violence issues make mediation unworkable). But simply unreasonably refusing to attend mediation will only reflect badly on you if the matter ends up in court.

20. Rushing to court as your first option

If you’re interested in avoiding divorce mistakes and the costly process of court, you might like to investigate collaborative divorce, which offers a mechanism for reaching a legally enforceable resolution of your family law issues without court. At Alliance Family Law, we have a special interest in collaborative law—give us a call to discuss whether it might be suitable for your matter.

Avoiding these common divorce mistakes will ensure your process runs more smoothly and results in the best possible outcome for you.

If you would like legal advice in relation to your divorce, property settlement, parenting matter or any other family law issue, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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