You’ve just separated from your spouse and you are unsure of what to do next? The first few weeks following a separation are likely to be confusing, full of self-doubt and may be riddled with guilt. It helps to have some guidelines on what are the important matters that need to be addressed during the early stages of separation. We have found a Checklist can remove the anxiety and stress of this period, particularly when you feel you don’t know who to turn to.
1. Decide where you will reside
This may be stating the obvious but try and think long term if you can when making this decision. Do you own a home together? If so, you may want to remain in the home to increase your entitlement to the property (you should talk to a lawyer about your potential entitlements). If this is not possible, can you afford to rent a separate residence? Perhaps you have an investment property that you can move into. The decision about where you live is vital in determining your expenses, your entitlements and where there are children, whether the environment is suitable for your children.
If the utility accounts are in your name and you no longer reside in the home, give your partner notice that you will be removing your name from the account. Conversely, if you are residing in the home but the accounts are under your ex-spouse’s name, contact the utility companies and have the account transferred into your name if they will allow this or set up a new account.
2. Collect all your important documents
It will make things a lot easier if you collect all your financial documents such as last 3 payslips, last 3 tax returns, bank and mortgage statements, credit card statements, registration papers for vehicles/boats/bikes, copies of certificate of titles for properties, rates certificates, super statements, marriage certificate, and documents relating to other assets and liabilities. Print out statements using online banking and tax portals as this will save time. If the children have passports then you will need to decide which parent will these remain with.
3. See a solicitor
This point should preferably be first on the list. People are often afraid of seeking advice from a solicitor because they believe the costs will be too high or they believe they can sort out things on their own….However: Would you attempt a root canal yourself if your not a dentist? You may be brave enough to do it, but the process will hurt and the outcome may not be pretty. We strongly recommend you try and seek advice from a solicitor before you separate. This will make the process smoother for you and you will have a more certain attitude about the actions you take. A solicitor will go through your background and circumstances with you to try and understand the whole picture, as well as what your current needs are and what your future needs will be. You will obtain advice about what the best options for you are and what the consequences of taking a particular course of action are likely to be. You will be given clear next steps and your solicitor will ensure you understand your legal entitlements.
4. Tell your ex-spouse that its over (if you are sure yourself)
You would be surprised at how many times the spouse on the other end may still be holding a hope that you will reconcile. If you are also hoping that things will change and you really don’t want to separate, contact a relationship therapist or counsellor that can assist you as a couple. Hopefully this will help you both work through the issues – however, you “both” need to work through this. On the other hand, if you have decided the relationship is over on a final basis, communicate this to your ex clearly. If it’s too difficult to do it directly, write a brief email or letter. The date of the actual separation is important for legal purposes, so it is helpful to be clear about this. If you are not in fear of danger, it is helpful to let your ex know where you will be residing and if you have children, what your plans are for sharing their time with your ex.
5. Break joint accounts and assets
The first step is to ring up your bank, tell them your separated and set up the requirement of joint signatures for withdrawals. If your wages, salary or other income is directed to a joint bank account, you should consider redirecting this to a sole bank account. If you don’t have a sole account, get one. The law in Australia is that if an account is in joint names then the monies held in that account are legally owned by both parties, regardless of the amounts each party contributed to the account. Also, where you hold a credit card in your name and your partner is the additional card holder, you will be solely liable for the debt, so ensure you remove them from this card promptly. You may also wish to stop online access to accounts.
Things get sticky when there are considerable savings in joint bank accounts. You may feel like emptying the whole account if it is held in joint names, but keep in mind that the Family Court considers this to be a joint asset, and what you spend may be claimed back as a notional asset. Also, we can almost guarantee that this sort of action will ensure you have an acrimonious separation rather than an amicable one. If you can agree, aim to close down joint accounts and distribute savings. There will be some joint accounts you cannot close such as mortgage and offset accounts. Check what sort of bills are being paid from the joint accounts. Do you need to redirect payments? If you have a home, try to agree on who will contribute to the joint account and the amount of contribution to at least cover outgoings and mortgage repayments. If you are not the one remaining in the home but you are the higher income earner, check with a solicitor before ceasing payments of a mortgage, as your spouse may be entitled to make an application for spousal maintenance (also financial contributions to a property will be taken into consideration when calculating the property settlement).
If you own a property (home or investments) jointly and you don’t see a resolution to the division of property as an imminent outcome, you may consider breaking joint tenancies. Don’t forget that if you pass away before your ex, your share will be transferred to your ex automatically. If you break a joint tenancy, you can remain as tenants in common and organise a will to bequeath your share to your intended beneficiary.
6. Have a plan about who the children will reside with at least on a temporary basis
You may be unlikely to completely agree on who the children are going to live with long term or how much time they should spend with each parent, but you will need to have a temporary arrangement in place whilst all those details are being hammered out. Always keep in forefront of mind What is best for the children? It’s irrelevant whether your partner has a new boyfriend and you don’t like him – unless the boyfriend poses a risk to the children. The Family Court aims to ensure that children get to have a meaningful relationship with both parents and this is balanced with the need to keep children safe from risk. Generally, if there has been one parent who has been the primary carer throughout the children’s lives, then it may be sensible that the children live with that parent to start with while they adjust to a new routine and a residence missing one parent. Days and possibly overnight stays can be arranged for the children to spend time with the other parent. The age of the children will be relevant in determining whether they are able to have overnight stays or how many overnight stays they might be comfortable with a week. Often it is better to try and sort these sorts of issues out in writing via email, rather than face to face or via telephone. Things will be emotional between you two but this isn’t the time to write a diatribe. Keep it brief, try and use neutral language, and set out your views about this in point form.
If you simply cannot agree on a plan, seek the assistance of a family dispute resolution (FDR) practitioner or private mediator. FDR is a low-cost public service but you may be on the waiting list for several months. A private mediator will be quicker but more expensive. You should note that if your ex commences the process with FDR and you do not turn up, they will be able to obtain a section 60I certificate which is the necessary precursor to commencing court proceedings for parenting orders. If you do attend but the matter cannot be resolved, a certificate will also be issued in this circumstance.
7. Apply for financial support
As a separated parent, you may be entitled to some benefits. Go to Department of Human Services Centrelink’s website https://www.humanservices.gov.au/customer/themes/child-support-and-separated-parents. You may be entitled to a parenting payment, newstart allowance, family tax benefit, a single income family supplement, or even a one-off crisis payment. You should also visit this site to make an application for child support or to estimate what the agency would calculate your child support payments would be. If the children are going to be residing with you for the majority of the time, then child support will be an important support mechanism for you. The Child Support Agency will take both your incomes into consideration and the time the children spend with each party when conducting its assessment. If you are in urgent need of child support and your ex is capable of providing this financial support, you should contact a solicitor to discuss making an urgent application for child support orders.
If you are significantly disadvantaged financially following separation whereby your lifestyle has diminished considerably and your ex is capable of providing some financial support to alleviate this hardship, you may be entitled to spousal maintenance. Talk to your solicitor about making an application on your behalf.
8. Obtain access to your belongings
If you left behind important belongings and your partner is not letting you come back in to retrieve them, seek advice from a solicitor. If there is an Apprehended Violence Order in place, you can apply for a property recovery order pursuant to Part 8 of the Crimes (Domestic and Personal Violence) Act 2007 whether you are the protected person or the defendant. This will give you access to the premises and there may be certain conditions involved. If domestic violence is not an issue, or if you don’t have an Apprehended Violence Order in place, the police may sometimes be able to assist you. Otherwise, your solicitor can commence action with the local court for the return of the property.
9. Change all passwords
This point is probably self-explanatory. Your ex-spouse may know your passwords, and if he/she doesn’t know them, they may be saved on the old computer. Therefore, change all passwords for email accounts, banking details, paypal, ebay, facebook, employment login details and any other online access points you might have.
10. Be aware of the effects of written communication
It’s a very good idea to keep communications in writing if possible as this will give you a record of agreements, disagreements and important information that maybe useful for referral in the future. This is particularly a good idea when making arrangements for the children as you will have a record of what has been agreed to.
Conversely, don’t use Facebook or other public forums to air your displeasure with your spouse or to allege your spouse has committed a wrong-doing. It’s not helpful to you or your children, and you may find yourself on the bad end of a defamation suit.
The above is a quick 10-Step Checklist that should aid you in getting through those first few weeks, or months of separation and set you on a smoother path towards a quick and satisfactory resolution. However, there will be further matters regarding property division, parenting, children’s interests and maintenance that your solicitor will guide you through. Ensure you contact your solicitor to set the right wheels in motion.