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This question is for an Australian family law expert. I am

martied but separated, under 12...
This question is for an Australian family law expert. I am martied but separated, under 12 months, living in the family home. I want to get a divorce. I have the kids with me in a shared arrangement and have not worked a long time as have been raising the kids. Am getting child maintenance but noy spouse maintenance. there is a lot of undue pressure on me yo leave the family home. It is the only asset I have . We have a lot of joint debt - some on the house but most on assets in my ex partner's name. Want to move out but he is delaying agreeing and signing the custody and financial agreements. What are the positives and negatives of moving out. What is the best strategy.
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Answered in 1 hour by:
7/24/2013
Daniel
Daniel, Solicitor
Category: Australia Law
Satisfied Customers: 5,827
Experience: Bachelor of Laws (dist) Graduate Diploma in Legal Practise. Admitted NSW Supreme Court / High Court
Verified
Hello

It makes little difference to move out of not.

You can do as you wish, moving out does not change what you are entitled to financially.

I would push for mediation or going to court.

http://www.relationships.org.au/

Sadly the debts need to be paid or at least an undertaking that he would pay the amounts.

If he is earning $ you will most likely be the main carer for the children and should obtain spousal maintenance as a result.

Please accept
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Customer reply replied 4 years ago
If there were no pluses and minuses to mioving out, why would pressure be exerted? Are you a family law practitioner? Request another opinion.
Customer reply replied 4 years ago
I request another expert.
Hello

I am a family law expert, i undertake family law matters on a daily basis, both giving advice and attending court.

There is no difference if you move out or not.

Nothing.

It is a matter for your partner as to why they want to move out. I cannot advise upon that at all.

Please accept
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Customer reply replied 4 years ago
Relist: Answer quality.
I would likesn opinion from another Australian Family Law ractitioner.
Customer reply replied 4 years ago
Relist: Answer quality.
I would likesn opinion from another Australian Family Law ractitioner.
Customer reply replied 4 years ago
Relist: Answer quality.
I would likesn opinion from another Australian Family Law ractitioner.
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 45,121
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified
Good Morning

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

I see you have been working with my colleague and still require a response.

Are you asking about getting a divorce or how the property can be split between you?

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Customer reply replied 4 years ago
Yes, he definitely wants a divorce. We are trying to reach agreement on property split but he wont sign.
Good Morning

They do not have to split property in order to get a divorce. The issue is that if they get the divorce they have 12 months to file for property if they cannot reach an agreement.

They can file a divorce application without the other party's consent and all they have to do is serve them with the papers.

The DIY application kit is on the following link

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Forms/Do-it-yourself+kits/Application+for+Divorce+Kit

If the other side does not agree to a property split then they have to file an application to have the court decide.

Moving out does not have a negative impact on your rights but the longer you leave it to file your application after moving out the more the other party can argue that they have made more contributions since you moved out.

It is best to move out and file the application as soon as possible.

I would move on the property and the divorce together and get things moving and finalise it all and get on with your life.

You may need a Solicitor to assist you in the property because you may also be eligible for spousal maintenance if you are dependent on the other party.

Is there anything else I can assist you with?

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Customer reply replied 4 years ago
That's very interesting. A family lawyer I know said it was a good idea to wait until a property agreement was signed before agreeing to move out or sell the house.

You have said nothing about the negatives.
Good Morning

If he will not agree then she is best to make the move and start proceedings in court for the property settlement.

If she does nothing when she moves and he is paying then this will go against her. This is because he is paying and looking after the place and she is not contributing in any way.

If she does not want to start proceedings she has to stay where she is.

If she does not want the court to decide she should also wait on the divorce till she gets a property settlement.

Taking anything to court will cost he money. So this is another thing she has to consider.

Is there anything else I can assist you with?

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Customer reply replied 4 years ago
Your second reply is very interesting because it makes it clear that your first reply didn't present a balanced picture of the positives and negatives, which is what I asked for.
Thank you
Good Morning

It all comes down to whether she is willing to force his hand and take it further and make the courts decide.

I hope I have assisted and if I can assist further please let me know.

I can send you the rating page now if you have nothing further?.


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Customer reply replied 4 years ago
What is the best advice where it appears one side is playing games with the other in terms of trying to negotiate agreements? The other side constantly says they agree with me but then keeps giving back supposedly amended documents that are nearly the same as before. The excuse is that the lawyers aren't following instructions but that's not the case at all. This is the case for custody, property, child support agreement, spouse maintenance.

Is it best to start litigation? What are the costs?
Good Morning

If they are playing games then filing an application in court is the best if you have exhausted all option including mediation.

Child Support you just need to go to the Agency and lodge an application there is no negotiation they do it all.

If the matter is to go to a full hearing and it involves children and property it could cast anything up to $100,000.00.

It is a shock I know but they are very costly and time consuming.

A solicitor will have to give you a cost agreement before they start.


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Customer reply replied 4 years ago
What does it cost to start the process?
Customer reply replied 4 years ago

Thank you for your opinion. I understand a court case can be expensive, however I also understand that 90 percent of cases are settled well before a court hearing.

Good Evening

The cost of starting could be about $6,000.00. You need to put together details affidavits.

You are very welcome and thank you for using my services.

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback

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Customer reply replied 4 years ago

.

Customer reply replied 4 years ago

Thank you

Good Evening

You gave me a rating of poor service is this in error or were you not happy with my work?
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Customer reply replied 4 years ago

I gave a poor rating because it was not at all clear the connection between moving out of the house and getting a divorce. Then you made it sound as if I had no choice and sit in the house because a court case would cost a fortune.


 


If you can elaborate and make it clearer as to the actions and reasonings for the choices, I am happy to give a better rating.


 


There seems to be a push to get a divorce. In fact the other side said they would never be the one to get the divorce.

Good Afternoon

The law does not require you to leave the house to be separated.

The law allows you to stay in the same house and still get divorced.

Here is the information from the Family Court.

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Publications/Family+Law+Courts+publications/Separated+but+living+under+one+roof

The divorce ends the marriage and it is not expensive. the filing fee is $880.00 and that is all you pay.

For a property settlement there is alot more work and it can be expensive.

Does this make it clearer?
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Customer reply replied 4 years ago

Not really. The above is something most people already know. What I would like you to explain better was your statement: "If she does not want the court to decide she should also wait on the divorce till she gets the property settlement." Why?

Good Afternoon

Once you get a divorce, then you have 12 months to file your property application. If she does not file a property application in that 12 months she loses her rights.

Therefore the longer she leaves the divorce she does not have to worry about when she files a property settlement. The time starts to run from the date of the divorce.

Is that clearer?
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Customer reply replied 4 years ago

Not really. Your first statement sounded as if you would avoid a court matter by waiting to get a divorce. Yet,from what you wrote above, it just sounds like getting a divorce will mean you probably still need to file a court application but you only get 12 months after the divorce to do it. Is that it, or is there more to it?

Good Morning

Let me explain it this way.

Lets assume neither of you do anything about a divorce. You can keep talking to reach an agreement and if no agreement is ever reached there is nothing to force either of you to go to court because there is no time limit to finalise the property split.

If you get a divorce then you have 12 months to reach an agreement fro property. If you cannot agree and the 12 months pass you are out of time.

In these cases where you cannot reach an agreement one party is forced to file a court application so that they are not out of time and for the court to decide.

You only have to go to court if you cannot reach an agreement. The Divorce just makes it more urgent because you can lose your right to a split if no court action is started within 12 months from the divorce being granted.

Is this clearer?
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Customer reply replied 4 years ago

Well, that information was not made clear before.I have more questions as a result of your reply, but I am happy to give you a rating because it


has taken a lot of effort on your part and mine to get this answer.


 


Thank you

Good Afternoon

I am happy it is clearer.

You are very welcome and thank you for using my services.

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback

Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 45,121
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified
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Category: Australia Law
Satisfied Customers: 45,121
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Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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