I have been married for 23 years, 2 kids, one is 16yo and will…

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Answer 1

Answered in 6 hours by:

12/6/2011

Solicitor: Patrick H., Lawyer replied 11 years ago

Patrick H., Lawyer

Category: Australia Law

Satisfied Customers: 5,422

Experience: Dip Law LPAB - Sydney based lawyer

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When deciding on what apportionment orders to make following the breakdown of a marriage or long de facto relationship, the law requires the court to take into account various factors, including who has primary care of the children and the income earning capacity of each of the parties.

Based on the information you provided, and all other issues being equal, the court would be very unlikely to entertain a claim that your spouse would get 50% of your home and other assets, and may well make orders which would allow you and your disabled child to remain in the house.

However, only a lawyer fully briefed in you and your husband's circumstances and the history of your family could give you firm advice as to the likely orders of the court. The court takes into account many factors, such as the parties contributions (financial and non financial) to the asset pool you and your husband's ages and health issues.

It is not relevant who instigates the divorce.

I trust the above assists your understanding.

Good luck and please click accept.

Answer 2

Solicitor: Leon, Solicitor replied 11 years ago

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,712

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

Verified

Good Evening

Because the childen are both under 18 and one is disabled and in constant need of care I believe of the whole of the estate you would be entitled to more than 50%.

You have a high level of future needs.

The court and law in determining property splits applies the following 4 steps.

Step 1: Determine what the assets are and their value

This will include all assets and their value as at the day that you are dividing them. It does not matter whose name the assets are in, they will form part of the matrimonial pool. Superannuation entitlements are also included.

Step 2: Determine what contributions you and your spouse made towards the assets.

This includes a consideration of both financial and non-financial contributions. Consideration is given to what assets each of you brought into the marriage as well. The weight given to your initial contribution will be dependent upon the length of your relationship. The longer the relationship the less weight given to the initial contribution.

Step 3: What are each of your future needs.

Consideration is given to your respective ages, your comparitive income earning capacity as well as other factors.

If these things don't balance equally for each spouse, then an adjustment is made in the percentages.

Step 4: Make an order that is just and equitable between both spouses

You would look at how to divide the assets to achieve the percentage division arrived at after the first three steps. Such as is the house sold, or retained by one spouse who pays the other out, does there need to be a superannuation splitting order, etc

It is not possible to provide you with a percentage range of expected property settlement without a proper consideration of all the factors in each of the four steps set out. I recommend that you make an appointment with an accredited family law specialist for a one to two hour consultation as they will then be able to provide you with initial advice of the percentage split to expect.

I believe you would get more than 50%

I hope this is of assistance and if so please click on the accept button.

I have been married for 23 years, 2 kids, one is 16yo and will…

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