I’m Thinking About Separating – What Happens If We Separate?

These are difficult questions to think about. In fact, most of us would rather think of anything but separation. Thinking about separating doesn’t necessarily mean you will separate. Strange as it may seem, at Kavanagh Lawyers we are big fans of marriage and de facto relationships. However, if separation is on your mind it’s better that you get sound legal advice. Usually one hour’s advice will give you all the information you need to make informed decisions, in your own time. One of the true joys of being a Family Lawyer is seeing the relief on a client’s face as she/he realises that their worst fears will not happen. Most clients say they wish they had come to see us years earlier.

General information only

Here are some of the questions we are regularly asked. We hope you that you find our answers helpful. We caution that this is general information only and should not be treated as legal advice. Experience tells us that each case depends on individual circumstances and you should see a lawyer before you make any significant decisions.

Will I ever see my kids again?  

Yes, you will. It is only in the rarest of cases that a parent never has contact with his/her children after separation. This is a question we are asked more often by fathers. Whilst you are unlikely to see your kids as often as you did before separation, most parents come to reasonable arrangements with children. Does this happen immediately? No. However, in most cases with time, good legal advice, (mediation if necessary and litigation as a last resort) most parents arrive at a reasonable arrangement.

I’m afraid I won’t have enough money to support myself and the kids?

This is a very real fear and a question we are most often asked by female clients. It’s also the main reason many women stay in controlling and abusive relationships. There is no simple answer to these very real fears. A few things are worth noting:

  • If there are assets to divide (e.g. money, land, houses, cars and possibly superannuation) then each party will receive a fair share.
  • Child support must be paid until a child is 18 and the Child Support Agency plays a vital role in deciding the amount to be paid and ensuring payment.
  • Spousal maintenance may be awarded for the support of a partner where one party proves they need financial support and the other party has the capacity to pay.
  • All parties must disclose their true financial position and there are major financial penalties for failing to do so.
  • Orders can be made obliging one party to pay the other party’s legal fees.

This can be a complex area of law. The main message is that your partner cannot lawfully financially control you to your detriment.

Can separation get ugly?

Yes. Not always though. People sometimes behave badly. Separation is very often a very emotional process and we are rarely at our best when relationships, emotions, children and money are involved. In our experience separation is a little like the stages of grief: denial, anger, negotiation and acceptance. It’s a question of time. When both parties are ready and are well advised an agreement is reached. It’s not always the agreement you want- but the objective is to reach an agreement you can live with.

“It’s all very amicable”

If we had a dollar for every time we heard that. People regularly say “it’s all very amicable” but in fact it rarely is. This is not to say that every case is litigated and becomes an emotional nightmare. Statistically only a small percentage of cases go to trial. The good news is that the vast majority of cases are resolved with time, patience and good legal advice.

Can’t we just sort it out ourselves without lawyers?

Absolutely. Many people represent themselves at the Family Court or file their own separation papers at the Court. It’s entirely a matter for you.

Should I try mediation?

Absolutely. It is far better to have ownership of a mediated settlement than have little or no control over a court determination. There are many options available to suit your budget and your timeline. We suggest you obtain legal advice before mediation so you can mediate knowing what your legal rights and responsibilties are.

Do I need Court orders?

In most cases yes.

  • Whilst Parenting Plans are very desirable they are not legally enforceable. So, you could spend 6 months negotiating a parenting plan only to find that the other party breaches the agreement and you are powerless to force the agreement.
  • Without court orders in a property settlement there is no financial finalisation of your relationship. This can make it difficult to plan your financial future if your ex-partner may have a legal right to a share of the relationship assets.
  • Most court orders are made by consent. Therefore, whilst you may sign some papers the reality is you may never see the inside of the Family Court.

What can a lawyer do that I can’t?

The obvious answer is to give legal advice. It’s a question of what, if any advice you may need. The more complex the issue the more advice you may need. The following are examples of where legal advice may be useful:

  • What contact your kids have a right to spend with you
  • Whether your children can live interstate or overseas
  • How the Family Court can help protect children at risk
  • Whether shared care is likely to be ordered
  • What share of your relationship assets you are likely entitled to
  • Superannuation splits
  • Stamp duty in separation cases
  • Spousal maintenance
  • Limitation issues- time deadlines to protect your legal rights
  • Child support
  • Binding Financial Agreements

Does seeing a lawyer mean I am going to Court?

Absolutely not. Good lawyers treat litigation as a last resort.

Very often the fallout from a relationship breakdown means there is a lack of trust and good lawyers can bridge the lack of trust. In very general terms our legal strategy involves the following steps:

  • basic advice about your legal rights and responsibilities
  • encouraging you and the other party to reach a fair agreement where you or your lawyer drafts and files the necessary paperwork to be filed at the court
  • mediation
  • legal letters to identify issues and make settlement offers
  • negotiation
  • as a last resort- litigation
Kavanagh Lawyers are highly experienced in dealing with the particular challenges that separation can create. If we can be of assistance, please contact us.