You’ve come to the only logical, though painful conclusion that a parting of ways is inevitable.
It’s likely that once you have reached the point of bringing up divorce to your spouse you are in the acceptance stage. You have accepted that your relationship is broken and cannot be repaired, and decided the best course of action is to separate.
An amicable separation is preferred without the unnecessary hurt.
Ideally, a formal arrangement or agreement between you is preferred, in short, a Separation Agreement.
A Separation Agreement may take the form of a Marriage Separation or a De Facto Agreement or a Financial Agreement or Consent Orders Filed in Court or simply a Separation Form.
A separation agreement, in any of its various forms, is essentially a contract between partners that describes how assets, property, finances, and parenting arrangements will be divided or allocated as the couple prepares to end their marriage or de facto relationship.
Critical to any contract however is that all parties must want to be party to that contract of separation, so what happens when one or other partner refuses to consider entering into a contract separate separation or simply avoids the issue altogether.
A joint agreement to separate or divorce is possible and represents a mature and responsible way forward for all parties involved.
What happens if one of the partners shuts down and blocks attempts at any communication to discuss and progress a separation?
Where a partner is unapproachable or hostile towards separation then the options are limited and any separation agreement will be slower, more expensive or even halted – particularly at the points where you require their input or signature.
Where this is your reality then the better way to go is for you to get a process where you initiate and take more control over the process.
Some useful strategies to encourage a reluctant partner to participate in the inevitably uncomfortable conversation of separation, include.
- Make notes or write out what you are going to say ahead of time.
- Remain calm and controlled when the time comes to speak to your partner or spouse.
- Arrange for a place to stay for at least the night after you have the conversation, if that becomes necessary.
- Be brief but specific and make sure you are concise and focused and use exactly what you want or need to say. Now is not the time to bring up old problems or rehash your relationship.
UNDERSTAND YOUR SPOUSE’S MENTAL STATE
- Understanding that you are likely to be in a better mental state during the conversation means that you need to focus on keeping calm.
- You need to remember that part of any separation or divorce includes a grieving process.
- You have sorted your position come to the conclusion that separation or divorce is necessary but, your spouse will likely be caught off guard when you bring up the topic.
- Where the relationship has been floundering and the door to divorce is opened, the fact is that both you and your partner, are more than likely in different mental stages of that grieving process and creates a lot of emotional turmoil.
- Expect your partner to deny that separation is necessary or become angry.
- Do not react to any insults that your spouse may make upon hearing your words.
- Label Your Feelings and let your spouse or partner know how you have been feeling so that they understand where you are coming from.
- Offer an Understanding Statement which though difficult to tell your spouse or partner that you understand that they may be feeling, angry, upset, or surprised.
- As much as possible be Positive while avoiding and ignoring insults attacking your partner remembering that negative remarks will increase the likelihood of escalating and already volatile situation to anger.
FINDING AN APPROPRIATE TIME TO BRING UP THE TOPIC
- Ideally a time when tensions between you are low and you are both are relaxed and comfortable.
- A time when you and your spouse are alone and free so that you can have a period of uninterrupted time together, and certainly, the children should be elsewhere.
A divorce or a separation does not necessarily mean that there has to be a division of jointly held assets. In other words, you can separate and divorce even without distributing and sharing the matrimonial or relationship assets.
Where children are involved in this circumstance necessarily results in somewhat more complicated considerations especially when children are living with one parent and spending time with the other. How that is to happen and would look like in practice requires both parties to be child focused and have front and centre in their thinking the best interests of the children at all times.
FOUR STEPS and PROPERTY SETTLEMENT
There are four steps that need to be followed when and if there is a need to divide up property between the at the parties and separation and who wish to finalise all financial matters between them.
Whether the Separation Agreement is a Marriage Separation or a De Facto Agreement or a Financial Agreement or Consent Orders Filed in Court or a Separation Form under the terms of the Separation Agreement (the contract) and certainly under the rule in the Family Law Act, both parties have clear obligations to make full and honest disclosure about their respective financial circumstances and in fact a failure to make such can have very serious consequences.
Those four steps are as follows
Step 1: Establishing net asset pool and valuation of assets
- All assets are taken into account, regardless of whether they are acquired before or during the marriage or after the separation.
- Property includes almost everything of value such as real estate, shares, cars, jewellery, savings, furniture and many more
Step 2: Contributions towards the net asset pool
- There needs to be a calculation of each partners’ contribution towards the marriage or de facto relationship, both financial and non-financial.
- There needs to be an evaluation of the contribution each party has made as a homemaker and/or parent.
- The contributions each party has made towards the purchasing of the assets are taken into account in these contributions can include such things as gifts, inheritances and money received during the course of the marriage or de facto relationship.
Step 3: Future needs and adjustments
- At step 3 there is a calculation _made of what the future needs of both parties will be and this calculation takes into account a range of things such as age, health, income earning capacity, properties, care and support of the children and financial circumstances of any new relationship.
Step 4: Practical effect
- In the fourth step consideration must be given to what the practical effect on the proposed property settlement will have and whether or not the eventual distribution of property will be “just and equitable”.
The rules that govern how the asset pool is distributed between the parties are complex matters.
How and what kind of Separation Agreement best suits your needs will be unique to your circumstances and at ORB Lawyers we tailor your agreement to your specific needs and circumstances.
We strongly recommend you seek legal advice before making a final decision and for more specific legal advice, please contact our team at ORB Lawyers who will be able help you with your enquiry to achieve the best possible results.