family law

How To Separate Well: What To Know & Do Upon Separation

Sionea Breust |

27 March, 2023

A note pad with each line numbered. To symbolise the order of steps for how to separate well and avoid common issues that arise.

Table of Contents

As professionals who work with people every day to help them move through their separation or divorce, we see where things go well and what leads to things taking a turn for the worse. We know what can be avoided and the best steps to take. If your goal is to learn how to separate in a way that avoids some of the more costly and stressful outcomes that you have probably heard about, you’re in the right place.

Here you’ll find many tips about what to do first when separating from your spouse or de facto partner. And, whether you have already separated from your spouse or partner, or you are thinking about it, there are issues that typically arise in a separation that the vast majority of people never see coming. We want you to know what they are and how to get ahead of them.

Knowing what to do first when separating from a spouse or de facto partner is often hard to determine. Especially when there are so many elements of your life that will be going through change.

Below we unpack the most common issues we know affect people in ways that can have devastating long-term impacts. We also share what can be done to minimise the risk of having to face issues like these in the first place.

Common Issues Upon Separation: Money & Finances

Some of the problems that commonly arise relating to finances upon separation include:

  • Hiding of assets
  • Bank accounts being drained
  • Selling off property
  • Bills not being paid (e.g. mortgages, loans, credit cards)
  • Lack of access to financial resources; or
  • Lack of knowledge about current financial position

When it comes time to finalise how you are going to divide your assets (referred to as a financial or property settlement), it is what is remaining that is shared. So, if money is moved, spent or wasted, what is left over is what can be divided in that settlement. There is no opportunity to claw back any value from anything that has been syphoned, spent or wasted.

Unlike applying for a divorce, you do not need to wait to get the property settlement process under way. Often it takes considerable time to collate the information required, coupled with the risk of your collective assets reducing with time, so getting the process under way sooner rather than later, is ideal. In fact, many people tell us they wish they had started earlier!

Even if you and your ex are amicable, issues like these can and do arise and create no end of short-term and long-term consequences. Because you’re probably already going through significant stress, you don’t need issues like these heaped on top!

How To Separate Well & Minimise Money Or Property Issues

Financial separation is the very first step that must be undertaken, even when your finances are intertwined.

Contact your bank and other institutions immediately upon separation to:

  1. Set up alerts on transactions from your personal and joint accounts.
  2. Check if you have dual signatories in place for any mortgages, loans or credit cards.
  3. Cancel any redraw facility on your mortgage.
  4. Cancel joint credit cards.
  5. Cancel any secondary cards that may exist.
  6. Update your superannuation binding beneficiary nominee/s.
  7. Update your life insurance nominee/s.
  8. Update your Will if your ex is a nominated beneficiary.
  9. Remove your former partner/spouse as your Power of Attorney &/or Guardian.
  10. Separate your private health insurance policy from any combined policy.

You should also:

  1. Change your login details for all bank accounts.
  2. Change your computer and phone access pins/passwords.
  3. Backup your computer and change all work, business and personal passwords including email, mobile phone, bank portals, superannuation accounts & social media to ensure that your information remains secure.
  4. Open up a bank account in your sole name if you do not have one. Ensure that any income (e.g. wages, dividends and rental income) is directed there.
  5. Continue to meet any mortgage repayments or other joint debts.

Ensure you purchase a handwritten diary. Make a note of things that you pay for post-separation (e.g. rates, utilities, children’s expenses etc). Ensure that this diary is kept somewhere safe and secure.

Why is this important information to record in a diary? Because all of these expenses need to be accounted for as they can impact the final amount of the property settlement.

Importantly, do not try to hide any assets. We cannot stress this enough. In the property settlement process you need to disclose everything (including work tools, equipment, bikes, boats etc).

Also, selling property can create tax consequences. Commonly people agree to sell a property and split the proceeds, unaware of the tax issues it may cause for them. Always seek advice from a family lawyer before making any decisions or agreements about how you will divide your asset pool.

Resource: To make this easier, we’ve made a downloadable checklist of the information detailed above, in both PDF and spreadsheet format. You can find the printable PDF here or download the spreadsheet version here.

Common Issues Upon Separation: Living Arrangements

Sorting out living arrangements after a separation can be tricky and raise a host of issues for one or both of you. Here are some of the issues that we see commonly arise:

  • Neither person wants to move out.
  • Moving out seems financially unaffordable so both continue to live under the same roof.
  • Parties may have children who are adjusting to the separation so stay in the same property.

These scenarios can create additional consequences in instances where:

  • There is violence.
  • There is increased tension and stress between you; or
  • Children are exposed to violence, arguments and ongoing conflict.

How To Separate Well & Minimise Issues Relating To Living Arrangements

If You Are Unsafe

Consult a family lawyer about your living arrangements. If it is unsafe for you to live in the family home with your partner/spouse, they may recommend that you see the police or seek an urgent Order from the Federal Circuit and Family Court of Australia that your partner/spouse live elsewhere.

You may be able to change the locks if the property is in your name. However, this will depend on your circumstances. Seek legal advice before taking this measure as it may exacerbate your situation.

Financial Affordability

In the event you believe you cannot afford to live separately, discuss your options with your family lawyer. There are often avenues available for us to apply for spousal maintenance to support you financially.

Where There Is Conflict

Consider moving out of the residence if the environment is toxic and unsafe. If you and your partner/spouse happen to have an investment property and it is vacant, give some thought to living there instead.

We know that often separated couples continue to live under the same roof because they are looking to keep things as normal as possible for their children. However, allowing children to be exposed to ongoing conflict is more problematic in the long term. It is far better to ensure their time with you is free of worry or conflict between you both.

Moving Out?

If it is you that is moving out of the home you shared, ensure you:

  • Gather all of your personal and valuable items before leaving.
  • Ensure you have arranged for your mail to be redirected, and that it ‘kicks in’ before you move out.

Common Issues Upon Separation: Wellbeing

It is common for your emotional and sometimes physical wellbeing to take a hit during a separation. It can be hard to get up in the mornings and stay positive when your life is changing so considerably.

Here is some of what you may encounter personally in the lead up to and during the separation process:

While not an exhaustive list, you may experience:

  • Feelings of sadness, depression, anger, frustration or self-doubt
  • Exhaustion
  • Overwhelm
  • Poor eating
  • Poor sleep
  • Reliance on alcohol or other vices to get through the day
  • Unhealthy behaviours arising
  • Sense of dread or fear

How To Manage, Protect & Improve Your Wellbeing During Separation

You will not be able to make good decisions for yourself (or your children) if you don’t accept or seek support throughout this process. Think about how you would help your best friend if they were going through this. What advice and support would you give them?

Here are some recommendations:

  • Engage a trusted advisor like a counsellor or psychologist (to provide you with emotional support and help you deal with the grief and loss that comes with the loss of any significant relationship).
  • Put great focus on sleeping well, healthy eating, exercise and hobbies (the only way to help you feel better for the long-term).
  • Lean on your support network. Reach out to your friends and family. If you do not have a support network, or wish to find other ways to process what you are going through, seek these out.
  • Seek legal advice from a family lawyer. This will ensure that you put yourself in the best possible position to make the wisest decisions.

Going through a separation is a significant life event. What is important for you to keep front and centre in your mind is that you can avoid issues like these, you can move through this process with confidence and clarity and there will be light at the end of the metaphorical tunnel.

When we speak with our family law clients as they embark on this process, they often say that they get clarity and confidence when they know what they need to be thinking about now, rather than thinking about all of the worries that come up in their mind. We help them understand what needs attention at each point in the process, and what they can park in their mind until later on.

Common Issues Upon Separation: Delayed Settlements

There are some other pieces of information that are very important and will be required as you go through the separation and property settlement process. To make the sourcing and collating of this information easier for you, and avoid contributing significant time to the process, we recommend you get started now.

A page with checkboxes ticked to indicate the order of items to do first when learning how to separate well

Information To Begin Collating Now

Begin noting down the following information about your marriage or relationship including:

Important Dates

  1. The date when you and your partner/spouse started living together.
  2. The date when you and your partner/spouse commenced your relationship or were married.
  3. The dates each of your children were born.
  4. If either you or your partner/spouse stopped employment for a period of time to care for them, note any start and end dates.
  5. The dates when you and your partner/spouse purchased assets in Australia or overseas.
  6. The dates when you and your partner/spouse sold assets in Australia or overseas. Also include the price these assets sold for.
  7. The dates when you and your partner/spouse received any inheritances or gifts.

Assets and Liabilities

  1. All assets you and your partner/spouse had at the start of your relationship (e.g. real estate, funds in bank accounts, motor vehicles, furniture and investments). Note what these assets were worth at the time.
  2. All liabilities you and your partner/spouse had at the start of your relationship (e.g. mortgages, credit cards or loans), including superannuation.
  3. If you bought and sold assets during the relationship, note down what you paid for these assets and who funded the purchases.
  4. If you or your partner received inheritances or gifts during the relationship, note down what was received and its value.
  5. All assets and liabilities you and your partner/spouse have right now. Note what each of these assets are currently worth.

Financial Contributions and Non-Financial Contributions

  1. All income received by you individually or collectively through salaries or investments (shares, properties, trusts etc).
  2. Non-financial contributions such as share of caregiving of children or home duties (including specifics such as gardening, mowing, cooking, grocery shopping etc)
  3. Non-financial contributions such as contributions to the home for example painting, renovating or project managing renovations etc.

This information is what any family lawyer will ask you to begin collating as it is the very first step in determining the final property settlement. We’re sharing it with you now so you can get the process under way sooner.

Independent legal advice is recommended before any property settlement, as the Federal Circuit and Family Law Court website explains “…family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.”

How To Separate Well Starts Here

Often disputes arise because people speak to a family lawyer after they’ve arranged how they’ll divide their assets. After legal advice, and seeing the big picture, it can become apparent that the arrangement is not in their best interests in some way. Family lawyers don’t want to derail an agreement, they want to make their client aware of what could be problematic and even catastrophic, if they proceed with the original plan.

In all situations, people make better decisions when they have the depth of understanding about the big picture. An experienced family lawyer will give you the most up to date information you need to understand the gravity of any decisions you are considering making. Then you make those decisions for yourself, with all the information to do that confidently.

Early legal advice is key to avoiding prolonged negotiations and expensive Court battles. When you are both informed with independent legal advice, you both know the ‘rules’ of family law and can negotiate far more effectively and often finalise your settlement sooner.

Have you recently separated or are you considering separation?

Do you have concerns or questions that you need answers to?

We can help you wherever you are based in Sydney. We have three office locations – Penrith, Norwest & Sydney CBD – as well as phone and online consultations if preferred. Reach out to our team on 02 47 222 050.

 

 

Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.

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