You are overwhelmed, upset, and outraged during a divorce or separation, and you want to protect your important possessions. If you do not seek guidance from a family dispute resolution practitioner, the legal processes in these areas can be quite difficult. Regardless of the conditions of their divorce, many couples prefer to divorce amicably rather than going through the lengthy ordeal.
If you’re planning a divorce and separation, it’s wise to speak with a lawyer first to avoid any future misunderstandings or exploitation of your possessions or children. A knowledgeable lawyer can advise you on the many options you may take to settle your issues and get information about the specific laws that apply to your situation.
Analyzing your marriage situation
Before discussing your divorce or separation choices, it’s crucial to understand your circumstances, such as whether you were married or in a common law/cohabiting relationship. Both of these circumstances are governed by separate laws. While they may appear to be the same in everyday life, they are not in the eyes of the law. In such conditions, the legal distinction becomes extremely crucial.
If you have been lawfully married, all property acquired during the marriage must be shared equally, even if the value has increased. Under common law, any property acquired by partners during the relationship does not have to be shared, nor does its increased worth.
However, if you have a marriage contract or even in a common law agreement, the conditions may alter. If the terms of property sharing, support, and other assets during separation are specified in the contract, they must be followed. This can make the process of divorcing a little easier because an agreement is already in place that covers many of the issues you would otherwise have to negotiate. It’s vital to remember that neither a marriage contract nor a cohabitation agreement can guarantee child custody agreements.
Separation and Dispute Resolution Options
There are many concerns to be resolved once both spouses have voluntarily chosen to split without coming back together, such as child support, child custody, property distribution, how you will handle your family debt, and who will retain the home. These issues can be resolved in a variety of ways, from informal to formal judicial proceedings.
1. Informal agreement
This form of agreement is only made between spouses, either verbally or in writing. Such a deal is not governed by any law and hence has no legal standing. While this method works for some couples, they primarily do it during their trial separation, while they are trying to rebuild and repair their relationship.
2. Separation and negotiation without the assistance of lawyer
Both parties agree on the parameters of the separation and put them down legally in a separation agreement in this manner. The agreement must be signed by both parties in front of a witness in order to be legally binding (who must also sign the document). This is considered an uncontested divorce, where the couple has agreed on all the major issues. The best part about this option is that the length of an uncontested divorce is shorter than going through court proceedings. Plus, it typically costs less and gives the couple more control over the outcome.
While a separation agreement can be completed without the assistance of a lawyer, it is a good idea to have your agreement reviewed by a lawyer before signing to ensure that you have addressed common areas of family conflict and to ensure that the agreement cannot be overturned later if one party did not understand the nature and consequences of the agreement.
3. Separation and negotiation under the assistance of lawyer
If you are unclear or disagree with the other party’s terms, it is wise to seek the advice of a competent practitioner who can assist you in resolving your problem. Separation with assistance is the most common and simplest method used by individuals. They assist and guide you during the process to ensure that everything is in order.
4. Mediation or Arbitration
Mediation can take place in both informal and formal settings, with a friend, family member, or skilled family mediator such as attorneys, social workers, psychologists, or other professionals assisting in the negotiation of a mutual agreement, particularly in the case of child custody.
5. Court
Court processes for a divorce can be time-consuming and costly, but for many people, court is the best choice, especially if one of the spouses is aggressive or threatening, and court intervention is essential for safety. Because court proceedings can take time and issues involving children and support are more pressing, the court can issue an interim order in some circumstances that will remain in force until your case is fully heard.
Conclusion:
Separation is a major milestone in your relationship. The decisions you make while separating can have a long-term impact on you and your children, and a Separation Agreement is a legally binding contract that must be followed. While you may go to court in the future to amend it, the procedure can be lengthy, so it’s best to get all of the specifics straight from the start.
If you need legal advice or help with a family dispute in Melbourne, Bayside Mediation will listen to your issues and provide you with solutions.