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The Do's and Don'ts of Marital Property Disputes
By Barry J. Roche
One of the very first rules students are taught at Law School, when it comes to a division of the
matrimonial property, is that a person's entitlementis NOT a "Mathematical Calculation"! In other words, you normally can't just apply a set formula to work out what you are entitled to. Your well-meaning friends may say that you're entitled to 50%, 60% or 70%, based on what occurred with someone they know or on what this person says "is the law". If you want to know what your legal rights are, ask an legal expert - not the next door neighbour.
laws of matrimonial property settlementvary widely from State to Country, a court is usually required to take into account a whole range of factors in determining how the matrimonial estate should be split up. For example, the court is often bound, by law, to consider the age of the parties, the duration of the marriage, property contributions before and during the marriage,the state of health of each party, any disparity in income levels, assets received by testamentary disposition, homemaker and parent contributions, a party's financial resources and so on. Each case depends on its own merits and you would be wise to seek some initial legal advice - pertinent to your marriageand your situation!
However, lawyers can be as much a hindrance as a help. They're ALL expensive and you don't want the lawyers ending up with most of the "matrimonial cake". The more emotional you are (as against being objective), the higher your legal bill is likely to be! Common sense and reasonableness, combined with sound legal knowledge as to your rights, will usually result in a better outcome for you.
Here are some things to keep in mind:
- 1. "Matrimonial Property" can have a much wider meaning than is commonly understood. Eg. Life Insurance Policies, present Pension Entitlements, Superannuation/Retirement Funds, Businesses & so on.
- 2. Don't take ANY notice of what your
divorcing spouse tries to tell you about the law.Ignore "Bluffs" such as "I've got the best Family Lawyer in town" or "You'll never see a red cent" or "you left me so you aren't entitled to anything".
- 3. "Matrimonial Liabilities" extend to unpaid debts or future debts, including any existing income tax liabilities. These must be taken into account so as to ascertain the "net value" of the matrimonial estate.
- 4. A 50 - 50% division of property is probably NOT appropriate where there are children (under 18 years) of the marriage, even if both parties contributions have been equal.
- 5. As a general rule, one spouse has no more entitlement to keep the former matrimonial home than the other. It is often better to try and retain it yourself though but NOT if you can't afford to!
- 6. Make sure you understand what you are agreeing to BEFORE you agree to it. By this I mean - understand how you will be affected by what you agree to.
Above all, consider this question carefully - " Will you be financially secure if you agree to what the other side wants?" Marital Property Agreements are usually final!
The Top 12 Mistakes a Woman Should Avoid
When it Comes to Divorce Planning and Financial Settlements
By Barry J. Roche
matrimonial divorce settlement is NOT an exact science. If a financial divorce settlementwas a straight mathematical equation, we wouldn't need courts and lawyers to resolve matters. Courts are usually required, under Family Law legislation, to take into account a range of factors in deciding who gets what. Too many women settle for a 50% split of the matrimonial property WITHOUT taking into account matters such as significant disparities between what your husband earns and your own weekly /monthly income and any restrictions your age or health might have on your capacity to earn income.
Another mistake is letting the other spouse retain the matrimonial home EVEN IF you have the ability to buy him out. Real estate property has a habit of increasing in value without you having to do anything. If you pass this up and your spouse pays you out then the problem often is that you don't then have enough money to purchase a property of your own. Deposits, stamp duty, legal fees etc. can put buying another home out of your reach. You're left paying out dead money in rent.
While not as common a mistake, some women will seek to keep the matrimonial home when they really CAN'T afford to financially. If buying out your husband's share in the house is going to involve you taking out a big loan, you need to factor in the monthly loan repayments PLUS outgoings such as rates, building insurance, public liability insurance and general maintenance costs. Only then will you know whether or not you can actually afford to keep the house.
Failing to take other matters such as alimony and child support into consideration BEFORE agreeing on a division of the matrimonial property is another problem. These are NOT matters that should be dealt with in isolation.
It is the current value of property that is taken into account - not replacement value. This means that if the family car is worth $10,000, it is often better to keep it. Too many women find themselves needing a vehicle to get the kids to and from school, football training etc. and having to spend twice what the family car was worth just to replace it. The same mistake is sometimes made when it comes to the marital furniture and effects. They are usually second-hand (even if only recently purchased) and therefore are not worth a lot of money. For example, the fridge that you paid $1,000 for new may now only worth a few hundred dollars. Keeping the bulk of the furniture (if it is in good condition) will avoid you having to pay a lot more money to replace it.
Property settlements may sometimes be amicable but this does not mean they are fair. Do not accept the inflated financial values your husband is likely to put on property that you want to keep and the low value he's likely to put on any property he actually wants to keep.
It is surprising to find women (and sometimes men) arguing over the little things. By this I mean, fighting for items of little financial worth. It's pointless paying hundreds of dollars in legal fees disputing who is going to get a $50 wedding vase or a $150 stamp collection.
Another mistake is overlooking other assets such as boats, trailers, machinery, pensions, retirement funds, stocks, shares and life insurance as matrimonial property and/or financial resources.
Too many women believe that if they go "soft" on their property settlement entitlements, their husband will be easier to deal with as regards the children. This approach rarely produces the desired result. The only real outcome usually is that your spouse perceives you to be weak.
Another very common mistake is seeking divorce financial planning advice from a lawyer instead of a financial planner. What do lawyers know about financial planning?
Some women get sucked into believing that by reaching an informal agreement with their husband that is legally binding. It isn’t - even if it's written down and both parties have signed it.
Finally, too many women simply give in to their husband because that's what they’ve always done. Now is the time to stand up for yourself as you now need to be primarily concerned with your financial future!
About the Author: Barry Roche
Barry is the founder of The Self-Help Club (www.self-helpclub.com) and the author of the ebook, How To “Win” When Facing Divorce”. He is a former Family Law Specialist who wrote this book specifically for women. The book is available for purchase at www.divorceandwomen.com/help.html
Barry is also the author of a 90 page Manual on “How To Beat Your Financial Worries When You Don’t Have A Job” (also available for purchase at www.divorceandwomen.com/bookstore.html ). (This article may be reproduced provided it is unedited, the copyright is acknowledged and the information in the resource box and links are published with it.)For further information view his website: divorceandwomen.com
© Barry J. Roche
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