Family Law
HOGAN STANTON LAWYERS ARE ABLE TO ASSIST IN THE FOLLOWING AREAS OF FAMILY LAW-
Binding Financial Agreements
Divorce
Divorce is the formal recognition that a marriage has ended. Divorce is a separate issue to matters such as property settlement, children’s arrangements, spousal maintenance and child support.The court does not take into account who is at fault when making orders as to divorce. The necessary requirements to obtain a divorce are as follows:♦ you have been separated for 12 months♦ the marriage has broken down irretrievably and there is no chance of reconciliation♦ your or your spouse is an Australian Citizen or resident and regard Australia as your permanent homeIf you have been married for less than 2 years you will also be required to obtain counselling from a recognised counsellor and attach a certificate to your application for divorce. Hogan Stanton Lawyers can refer you to recognised counsellors in your area.You can still apply for a divorce if you are living separately, but in the same house. This is known as “separation under the one roof“. If you have lived separately under the same roof during part or all of the required 12 month separation period, both you and a third party will need to file an affidavit to prove you have lived separately. We can provide you with legal advice about the content of your affidavits and the prospects of success of the application.If you make a sole application for divorce and there is a child of the marriage currently under 18, you must attend the hearing. Hogan Stanton Lawyers are here to assist you with the preparation and filing of your divorce application and can appear at the hearing in court on your behalf.
Seperation
If you are considering separating or have separated already, knowing where to find information and support can be difficult. When your marriage or de facto relationship ends, you may find yourself in a confusing maze of legal jargon, rules and procedures. It is always important to get legal information and advice when separating. It can assist you in making decisions and inform you of your legal position, rights and obligations. When you separate it is best to seek legal advice as soon as possible, particularly if there is a risk of harm to you or your children.Even if you and your partner can talk together and reach agreement, it is useful to know what you are legally entitled to and where you stand legally before committing yourself to anything. If you have prepared a written agreement, you should obtain legal advice if you want to make the agreement legally enforceable.You may find that after you have received initial legal advice you need us to help you in the longer term. You may need us to negotiate with your partner or ex-partner on your behalf or make an application to the court.Your legal costs will depend on the amount and type of work we have to do and whether you are entitled to legal aid. Legal Aid has funding guidelines and uses a “means” test and “merits” test to determine if legal aid will be granted.We offer a special deal for the first appointment. It is free for the first 20 minutes.
Childrens Arrangements
When you separate, it is important to have an agreement in place, setting out arrangements for the children.
Arrangements for the children can be formalised in 2 ways: ♦ Parenting plan ♦ Parenting order
A parenting plan is a private agreement which must be in writing, dated and signed by both parents. It can be changed at any time, provided that both parents agree.
If you can’t agree, you will need to apply to the court for parenting orders in terms that you want. However, the court may be unwilling to make orders different from the parenting plan, particularly if the parenting plan has been in place for a long period of time, unless you can show your circumstances have changed and that it is in the best interests of the child/ren. A parenting plan is not legally enforceable as it is not a court order and it is strongly advised that you obtain legal advice before signing a parenting plan. A parenting order is a document that also sets out parenting arrangements, however it is registered or filed in the family law courts and once approved by the court is stamped with the court seal and becomes a parenting order. A parenting order is enforceable by a court and if you have concerns about your spouse complying with parenting arrangements, it is advisable to obtain a parenting order, rather than a parenting plan. Where agreement is reached about parenting orders, consent orders may be filed with the family law courts, which has the same effect as a parenting order but you do not need to go to court. Consent orders can be changed at any time if both parents agree. However, if you can not agree you will need to apply to the court to change the orders. This can be difficult as you need to show to the court that your circumstances have changed since the order was made and/or a reasonable period of time has elapsed since the order was made.Prior to filing an application for parenting orders, the family law courts require parties to make a genuine attempt to resolve their differences, by participating in family dispute resolution.
There are some exceptions to participating in dispute resolution, if there is violence or abuse or grounds of urgency. Hogan Stanton Lawyers can advise you as to whether you meet one of these exceptions or if you need to participate in family dispute resolution and provide you with information as to the recognised mediation services available to you.
There are a number of other issues that you may need to consider and obtain legal advice in relation to, including the following:
♦ What happens until a court order is made?
♦ Can I get an urgent order?
♦ What about grandparents and other significant persons in a child/ren’s life?
♦ Do I need an independent children’s lawyer and/or a family report?
♦ Do I have to force my child to spend time with the other parent?
♦ What happens if I do not comply with a parenting order?
♦ What if there is danger of abuse or risk of harm?
♦ What are supervised visits?♦ What happens if there is a protection order and a parenting order that are inconsistent?
♦ What if my spouse or another person has taken my child/ren from me?
♦ How can I prevent my child/ren being taken overseas?
♦ What can I do once my child/ren have been taken overseas?
♦ Can I move away with my child/ren, if I want to relocate?
Parenting arrangements can involve very complex issues and Hogan Stanton Lawyers can advise you from the very outset of your separation to ensure that you do not take any steps that may prejudice your matter should you proceed through the family law courts.
Child Support
Both parents are responsible for financially supporting their children until they are 18 years of age or self-supporting.
The Child Support Agency is a government agency set up to calculate the amount of child support that should be paid and can also collect the child support payments for you.
There are 2 ways that the amount of child support can be calculated and paid to you:
♦ Assessment by the Child Support Agency
♦ Private Agreement
Assessment by the Child Support Agency
The agency uses a formula to calculate the amount of child support based on the income of each parent, the number of children and other factors including the amount of time the children are in each parent’s care. If you are not satisfied with the child support assessment we can assist you with seeking a change of assessment and/or appealing the decision made in the review.
You may be able to use the online calculator available on the Child Support Agency website to estimate what your child support or family assistance payments might be.
Private Agreements
There are 2 types of private child support agreements:
♦ Limited child support agreements
♦ Binding child support agreements
Binding child support agreements can only be entered into with a high level of formality. Each party must receive legal advice before entering into or terminating the agreement and legal advice certficates must be attached to the agreement.
Limited child support agreements are more flexible and less formal and do not require the parties to enter into legal advice. A child support assessment must be in place before the Agency can accept a limited child support agreement and the amount of child support to be paid under the agreement must be at least as much as what would otherwise be payable under an assessment. If the notional assessment changes by at least 15%, either party can terminate the agreement. Further, either party can terminate the agreement after a period of 3 years.
There are limited grounds to get an agreement changed and in some circumstances, a private child support agreement may impact on the Family Tax Benefits you receive. Therefore, it is important you seek legal advice before entering into a private agreement.
Private child support agreements can be registered with the Child Support Agency if you require the Agency to collect the payments, or remain unregistered.
If you have a child support assessment or registered agreement with the Child Support Agency and your child turns 18 and is still attending secondary school, you can apply for an extension for the payment of child support until the last day of school. You must apply before the child turns 18, unless there are special circumstances.
The court can also make an order for the maintenance of children over 18 years of age if the support is necessary to complete the children’s education (including tertiary education) and/or if the child has an intellectual or physical disability. It may also be possible to obtain a court order requiring a spouse to contribute to child -bearing expenses whilst you are pregnant and any time up to 12 months after you have given birth.
Hogan Stanton Lawyers can assist you will the preparation of private child support agreements or applications to the court for child support for children over 18 years of age or child-bearing expenses.
Property Settlement
Property Settlement is the legal term for what assets each party is entitled to and what liabilities each party is responsible for. Property can include anything of value including but not limited to bank accounts, superannuation, shares, insurance policies, business interests, cars, furniture and houses and land.
If you are married, or in a de facto relationship and separated after 1 March 2009, your entitlement to property is determined under the Family Law Act. To determine your entitlement to property settlement the court adopts a four step approach:
Determine the net value of the asset pool. This involves making a list of all the assets and liabilities and their value. Some assets may need to be valued by a registered valuer. Determine the parties financial and non-financial contributions as a percentage. This involves working out each parties’ financial contributions considering the assets of each party at the commencement, earnings, gifts, inheritances, payouts or improvements to property or other assets. It also involves looking at the contribution of each party as a homemaker or parent and such contribution may be considered valuable
Determine the parties future needs. This involves looking at what the future needs of each person are likely to be taking into account dependants to support, disparity between earnings and ages of the parties, any health problems and prospects of employment. Your percentage entitlement may be increased or decreased depending on these factors.
Consideration as to whether the property settlement is just and equitable.
This involves the court making a determination as to whether the orders as to property settlement are just and equitable and the court in its discretion, may increase or decrease your percentage entitlement. If you were in a de facto relationship and separated after 21 December 1999, but before 1 March 2009 your entitlement to property settlement is determined by the Property Law Act. Your percentage entitlement will be determined similar to the way married couples are covered by the Family Law Act, but the main differences are that you are not entitled to spousal maintenance and superannuation is not considered an asset, but a financial resource.
However, in some cases you may be able to opt into the Family Law Act if both parties agree. You should seek legal advice.
If you were in a de facto relationship and separated before 21 December 1999, there are no clear rules about how property is to be split. A lot of emphasis is placed on what financial contributions were made to the property.
If you and your spouse agree as to how to divide your property, you can formalise your agreement by either a Binding Financial Agreement or Consent Order. If there is no agreement, you will need to apply to the court. We strongly recommend you seek legal advice prior to filing proceedings as there are certain pre-action procedures that must be followed. There may be implications as to legal costs if they are not followed.
If you are married and have obtained a divorce, you have 12 months from the date your divorce became absolute, to commence proceedings for property settlement. If you were in a de facto relationship, you have 2 years from the date of separation, to commence proceedings for property settlement. Outside these time limits you must obtain the leave of the court which may be difficult to obtain and is often only granted in exceptional circumstances. Please seek legal advice urgently if you are outside this time to obtain advice as to your prospects of proceeding.
Spousal Management
If you are married, or in a de facto relationship and separated after 1 March 2009, you may be entitled to claim spousal maintenance. Spousal maintenance is financial support to assist you to meet your usual and everyday expenses, rather than financial support for the children. An order for spousal maintenance can be made for payment of a weekly sum or a lump sum. Spousal maintenance is different from child support and if you have children and are entitled to spousal maintenance, your spouse will have to pay both child support and spousal maintenance.
Spousal maintenance is not an automatic right and the following are some of the factors a court will consider in determining your entitlement to spousal maintenance:
♦ your ability to support yourself properly
♦ the income and usual and everyday expenses of both yourself and your spouse
♦ the length of your marriage and whether you have lost your employment skills and require retraining
♦ other reasons that may prevent you from working
If your spouse will not agree to pay spousal maintenance, you will need to apply to the court for an order. If you are divorced, you have 12 months from the date your divorce became absolute, to commence proceedings for spousal maintenance. Outside this time limit you must obtain the leave of the court which may be difficult to obtain and is often only granted in exceptional circumstances. Please seek legal advice urgently if you are outside this time to obtain advice as to your prospects of proceeding.
Hogan Stanton Lawyers can advise you as to your likely entitlement to spousal maintenance and negotiate the payment of spousal maintenance with your spouse on your behalf. We can also assist you with the preparation of any necessary court application and represent you in court at the hearing.
Binding Financial Agreements
You can make a financial agreement before marriage, whilst married, after separation or a marriage breakdown or after divorce.
Any de facto couple including same sex couples can make a financial agreement.
Entering into an agreement may remove doubt or uncertainty, which can lead to arguments. A financial agreement, through mutual understanding and appreciation, can actually strengthen a relationship.
Agreements are usually done where:
♦ One party has significantly more assets than the other
♦ One party has a higher debt level than the other
♦ One party has dependants and needs to protect their capacity to support same
♦ One or both parties have previously experienced a marital breakdown
♦ One or both parties have previously been involved in expensive court proceedings
♦ One or both parties seek to prevent the other from making an application to the court for division of property
More and more men and women are taking financial and legal precautions against a relationship breakdown.
Hogan Stanton Lawyers have experience in drafting these agreements.
Examples of what the agreement can cover?
♦ Any property that you have at the beginning of the relationship that you wish to protect
♦ How you will keep your finances separate
♦ How you will own property during the relationship e.g. jointly or separately
♦ How you will divide property if you separate
♦ How you will provide for spousal maintenance
♦ How you will provide for children
What do I need to do to work towards agreement?
♦ Discuss the matter openly with your partner
♦ Make full disclosure to each other about finances
Obtain independent legal advice about what could happen if you separate with or without an agreement so you know what the alternatives are
Are these financial agreements legally enforceable?
Yes, however there are strict requirements that must be met.
You need to seek advice from an experienced lawyer on this type of agreement. We will discuss what the conditions are at your first appointment.
However, courts do have the capacity to set aside these agreements. There are a number of grounds which can apply which we will also explain to you.
Why wait? Contact us now to protect your future!
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