Separation and Divorce
I Have Just Separated! What Should I Do Now?
1. Stay Calm
There is life after separation. The decisions you make now may have important consequences later.
Try not to make decisions in the heat of the moment.
Make rough plans that meet your needs.
Remember to keep any plans flexible.
2. Seek expert help
There is a list of helpful organisations at the back of this booklet.
3. Consider Counselling
4. Consider Mediation
5. Prepare A Careful Budget
6. Seek Legal Advice
Even if you and your spouse want to negotiate matters between yourselves, your solicitor will be able to give you the information you need to act in your own best interests.
Do not rely on the experience of friends and relatives who have had relationship problems. Your situation is probably different and the law may have changed since then.
7. Make Any Agreements Formal
Once you and your spouse reach an agreement, make sure you make it formal.
A solicitor can explain the alternatives to you. This way you know that your agreement will be enforceable by the Court.
8. Ask Your Solictitor Whether Or Not You Should Make A New Will
9. Keep A Diary Of Any Incidents That Relate To The Children If You Are Having Child Welfare Problems
10. Keep Copies Of All Documents And Letters Sent To You By Your Solicitor
Also keep all receipts and invoices that relate to your financial situation.
11. Ask Your Solicitor Questions If There Is Anything You Do Not Understand
12. Ask About Your Legal Costs
Solicitors’ fees may vary from firm to firm. Some solicitors send accounts after specific stages.
You may prefer that your solicitor sends you monthly accounts so that you are clear about your costs as you go along.
Sort these things out up front as it will save you and your solicitor embarrassment and disagreements later.
13. Seek Legal Advice About Where You Can Live
You may be able to obtain a Court Order that gives you sole use and occupation of your home.
14. Remember To Take Your Personal Papers If You Do Leave
15. Go Back To Collect Your Belongings If You Need To
If you need to go back to get personal items that you left behind, but are afraid, you can ask the police to accompany you.
Can I Make An Agreement With My Spouse Without Having To Go To Court?
It is always preferable to reach an agreement.
You can try to do this through counselling, mediation or negotiation.
Counselling
Counselling can help parents to work through issues of child welfare or other problems resulting from separation.
Mediation
A mediator is a neutral third party who arranges a meeting between you and your spouse to help you find a solution to your dispute.
Solicitors sometimes sit in on mediation sessions with their clients.
If your solicitor does not sit in on your session, you can meet your solicitor afterwards and get legal advice before the next session.
If you reach an agreement during a mediation session, you can then speak to your solicitor who will prepare the agreement in writing.
Negotiation
Experienced Family Law solicitors, such as Michael Lynch Family Lawyers, try to settle matters without going to Court. They do this through negotiation.
Most matters are settled by negotiation.
What Sort Of Agreement Do I Need?
The type of agreement will depend on the issue.
The most common types of agreements are those that relate to:
- children – Consent Order or Parenting Plan;
- property settlement and/or spouse maintenance – Consent Order or Binding Financial Agreement; and
- child support – Child Support Agreement.
What Is A Binding Financial Agreement In A Marriage?
There are three types of Binding Financial Agreements:
- before marriage – also known as a pre-nuptial agreement;
- during marriage; and
- after marriage.
As long as a Binding Financial Agreement meets the legal requirements, they are binding and will be enforced by the Court.
From 1 March 2009 defacto couples can also make a Binding Financial Agreement under the Family Law Act.
What Is A Recognised Agreement In A De Facto Relationship?
The law regarding property settlements for defacto couples changed on
1 March 2009. Couples that separated after that date come under the Family Law Act. For couples that separated before 1 March 2009 there are two types of Recognised Agreements (under Queensland Law). These are:
- Cohabitation Agreements – created before a couple decides to live together, or during the time that they live together; and
- Separation Agreements – created after a couple separates, or when they state that they intend to separate.
When Can I Get A Divorce?
Family Law in Australia is based on a ‘no fault’ principle. The only ground for divorce in Australia is 12 months separation.
It is possible for you and your spouse to ‘live under the same roof’ and to still satisfy the required 12 months separation.
When calculating 12 months separation, any periods of reconciliation that are less than three months long are not counted, and do not stop a 12 month period from being calculated.
You may apply for a divorce either individually or together.
Divorce applications are handled by the Federal Magistrates Court.
A Divorce Order becomes final one month and one day after it is made. Neither person is allowed to re-marry before the Order becomes final.
In marriages where there are children under 18 years, the Court must be satisfied that appropriate arrangements have been made for their care.
Once the Divorce Order has become final, you have a deadline of 12 months in which to start proceedings for property settlement, if not finalised already. After 12 months you must apply to the Court to be allowed to start an application.
Do I Have To Change My Name?
A woman is not legally obliged to use her husband’s surname when she marries. The use of the husband’s surname has developed through custom.
If you decide to use your husband’s surname, you can change back to your maiden name at any time you want to. This often happens after separation.
Do I Have To Support My Spouse?
Spouse maintenance is where a payment is made by one spouse to the other because of a significant difference in the amount of income.
There is no formula to apply in determining the amount of spouse maintenance, rather there are a number of factors that the Court takes into account when deciding whether maintenance has to be paid.
Anny money received from an income-tested pension or benefit is ignored by the Court when deciding if maintenance will be paid or not.
Sometimes the Court will say that maintenance must be paid for a specific period of time so that the other person can complete a training course.
Maintenance payments will end if any of the following occur:
- the person receiving maintenance remarries;
- the person receiving maintenance dies; or
- the person paying maintenance dies.
Client Testimonials
“Michael Lynch Family Lawyers always gave me competent and knowledgeable advice. I was always given the best advice and I was consistently kept up to date. The meetings and phone calls were kept business-like, yet caring and thoughtful of my emotional state at the time. Thank you.â€
Client Testimonials
I have appreciated the way that you and the staff at your firm have handled my situation. I would especially like to mention the professional and caring way my lawyer conducted my case, I am deeply grateful and extremely happy with the results. I will be referring others to your service.
Michael Lynch Family Lawyers always gave me competent and knowledgeable advice. I was consistently kept up to date. The meetings and phone calls were kept business-like, yet caring and thoughtful of my emotional state at the time. Thank you.
My lawyer was the most knowledgeable of all lawyers I spoke to when looking for a lawyer. Michael Lynch Family Lawyers showed professionalism.
Thank you, you placed my needs first, you were aware of the need to reach a final result and not get caught up in the personal issues of the other party.
Amy, thank you. You have been diligent, accurate and pro-active for the entire duration of my matter. I appreciate it.
Thank you for providing me with a professional yet empathetic approach to gain the best outcome for me. My solicitor was excellent in explaining the processes and in representing me in Court. You have great customer service!
Thank you for helping me through this difficult time. You have been caring, compassionate and efficient. Some of my divorcing friends have not been so fortunate. In my mind, you are the best family lawyer in Brisbane. If anyone I know needs a good family lawyer, I will tell them to speak to you. Thanks again.
Many thanks to Stephanie for her help and support through this time, I was incredibly impressed with her work.
Thank you very much to everyone at Michael Lynch Family Lawyers. Thank you for helping me get my life back and make a fresh start. To have that fresh start without fear and anxiety is priceless.
The staff at Michael Lynch Family Lawyers were great. Everyone was fantastic, professional, understanding, caring and always communicated with me. I knew I was in good hands.
I was very impressed with the initial interview. Everything was well-explained, and the advice was honest about what I should expect.
Many thanks for your assistance – life is now great – I’m moving on.
I appreciate my lawyer’s professional approach and her being on top of my situation.
My lawyer has been an amazing help through this stressful time. I will remember her help for the rest of my life. Thank you.
I liked my solicitor keeping things as simple as possible.
May I take this opportunity to express my gratitude to you and your staff for the excellent professional services I received. In a word, priceless.
Amy’s work was extremely professional but above all she has a manner and wisdom in dealing with people under stress. I will be recommending your firm to anyone that requires assistance.
The professionalism and reliability delivered by Amy Honan was fantastic. I had an urgent matter around my property sale and Amy offered to provide assistance over a weekend if I required it – that’s above and beyond!
I really appreciated the happiness of your secretarial staff.
My solicitor provided a personalised service, prompt and quick responses and cost information prior to my commitment.
Thank you for being very personable, professional and always providing me with the most appropriate advice in my times of difficulty. The other party’s lawyers were extremely aggressive, while Michael Lynch Family Lawyers remained calm and professional.
At Michael Lynch Family Lawyers I got professional and ‘no-nonsense’ advice, costs were within quoted amounts and my matter was resolved quickly – well done!
Thank you for your ongoing conciliatory approach in this matter and as always I appreciate your level headed advice. I certainly feel that I ended up with the right Solicitor.
I’m very glad ‘Michael Lynch Family Lawyers’ is my lawyer and not the other side’s solicitor.
We had such a positive experience with Michael Lynch Family Lawyers, and we highly recommend their services. Meticulous attention to detail, attended quickly to every additional request we made, and made sure we always knew exactly where we were every step of the way. Our lawyer took what was such a stressful and emotional time for our family, and made the process feel so smooth and seamless.
Thank you Debra for all the work you did for me, you both made the process manageable and brought sense to the chaos.
I was guided through a really difficult time with expertise of Michael Lynch Family Lawyers. I am more than happy with the outcome of mediation.
You, guys, provide extraordinary service.
I always felt that the service provided by Michael Lynch Family Lawyers was of a high standard. Each time, after appointments I came away feeling secure. Keep doing what you are and maintain the ‘family feel’ that permeates your services.
I like your friendly service and the ability to speak to my solicitor directly.
I just wanted to get in touch to say thanks for helping me get through my custody and settlement. Thanks again to you and your staff. You have had a significant positive impact in my kids’ lives!
So pleased to have had a good, sound and knowledgeable firm.
Michael Lynch Family Lawyers know what they are talking about.
Thank you for the great newsletter. Your article on “Coping with Christmas” is brilliant – clear, caring and helpful. Thanks again!
After utilising the mediation services team recommended by your organisation, my ex-partner and I were able to reach some interim agreements about parenting. I am incredibly grateful for the advice provided by Debra Effeney; and found your firm’s services to be exceptionally professional. If we needed to consult a family lawyer in the future, we would have no hesitation in reconnecting with your firm.
Amy, thank you for all that you have done during this matter. You impressed me with your professionalism from our initial meeting, and you have proven beyond doubt, to have had the skills and knowledge required. You are a credit to the company, and I would highly recommend you to anyone in a similar situation.
Michael is very personable and very good at covering the material and explaining the strategy.
Michael Lynch Family Lawyers have really listened to me. I felt confident my case was handled well. The law has changed recently, and I did not feel that a previous law practice I spoke to was suitably up-to-date.
I really liked the personable service by Michael Lynch Family Lawyers, the simple plain language you adopt and everyone’s patience.
Thank you for the outstanding legal advice you have provided and professionalism in which you conduct yourself. I am truly thankful that it was you who represented me.
I appreciate you being upfront with fee estimates. You also have a fantastic website and the seminars REALLY helped to get me focussed.
Your team’s communication with me was exceptional, I knew exactly what was happening.
I would like to thank your firm for the support and compassion shown while dealing with my matter.
My solicitor is a good listener. My documentation maintained the high moral ground.
I was impressed by my solicitor’s attention to detail and her concern for me, and that the process was explained to me and that I understood it at all times.
Your staff is knowledgeable, professional and very calm.
A personalised and professional service. Information has been clear and provided timely to assist my decision-making.
Lovely to deal with and provides a balanced view in what are very difficult circumstances.
Amy, thanks very much to you and your team. Throughout my dealings with MLFL I have been continually impressed with your level of professionalism and, in particular, your understanding of circumstances and the articulate way you conduct yourself. I was completely satisfied with today’s outcome and without your experience and expertise in family law I doubt that the result would have been achieved.
Thank you, you kept me sane in a difficult situation and gave me the encouragement and the confidence to keep going. You made me feel extremely comfortable.
I like that my lawyer treated me like a friend and kept jargon to a minimum. She was easy to contact and kept me informed.
Your newsletters are great, I appreciate them.
Michael Lynch Family Lawyers are easy to deal with, and your systems are good.
My lawyer acted with professionalism in all her dealings with me and with the lawyer on the other side. I was always kept in the loop. I liked her approach. Thanks.
My family lawyer was very helpful in assisting me to combat a very ugly situation without stooping to the low levels that the other solicitor attempted to take us.
Your team is professional, warm, friendly and real.
Michael, thank you again for your presence here yesterday. We really appreciated the clarity and accessibility of your presentation. It is a rare thing to find somebody who not only has expertise, but also has a skill in communicating it.
I was always confident that I was getting the very best advice.
If I need a family lawyer in the future I’ll be heading to Michael Lynch Family Lawyers again.
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