BucketOrange Magazine

Life Guides for Gen Y: Four Easy Steps To DIY Divorce

Karen Finch — Sun, 08 Jan 2017 22:00:11 +0000

Most of us have at some stage in our childhood fantasised over our wedding day. Who will I marry? What will they look like? Where will I get married? As a mother of four small children, I often have three little ‘brides’ and one very reluctant ‘groom’ (my 9-year-old son) role playing ‘weddings’ in my lounge room.

But what happens when the fantasy is no longer a reality? The decision to separate and end a marriage is not an easy one to make. Just as every marriage is unique to the couple in it, so is every separation and divorce. Some are amicable and a joint decision; most are highly emotional and messy.

In situations like these, when emotion clouds judgement, it is really important to know the steps, process and what to can expect during separation and divorce.

Step 1 – Counselling and mediation

If you have decided to separate from your partner, the Family Court of Australia strongly recommends that your first step should always be counselling and informal mediation. There are several fantastic counselling agencies like Relationships Australia where you can go for help.

Of course, your partner may not wish to participate in counselling. In this situation, it is still worthwhile accessing support as it can save time and money down the track when you need to sort through big decisions.

Counselling services may also be able to provide you with an informal mediator. This can help with making interim decisions like care of your children, who will stay in the marital home, and making sure financial responsibilities like mortgage or car payments are maintained.

At this stage, any decisions you make with your partner are not legally enforceable until they are formalised in a binding financial agreement or consent orders.

If you manage to reach mutual decisions on these types of issues early on, you can save a significant amount of money and time later.

Quick tip: If you both decide to remain in your marital home, it is critical that you record your official date of separation in a journal or diary. This can then be used to substantiate your divorce application, which requires couples to be separated for at least 12-months before making an application for a divorce.

Step 2 – Reaching An Agreement

If you can both agree about how your property will be split, how you will deal with finances and contact with your children (if applicable), it is vital to formalise these arrangements either in a binding financial agreement or formal consent orders.

If you don’t formalise your agreements, you run the risk that your partner may be able to make a future financial claim or decide to renege on what you originally arranged.

At this point, you should consider getting in touch with a family lawyer who will draft the necessary documents for you. Since your lawyer can only act for you, your partner will need to seek independent legal advice before any agreement or consent orders can be officially executed.

Quick tip: The benefit of getting legal advice during this step of the process is that everything, including issues you may not have considered such as superannuation, child support and spousal maintenance, will all be factored in and settled early.

Step 3 – What happens if you can’t reach an agreement?

If you cannot reach an agreement, the next step is to issue proceedings in the Family Court or the Federal Circuit Court.

Both Courts have guidelines which explain their processes.

A crucial step during this stage is to attend a conciliation conference with your partner. This is a court-based mediation type process administered by a Court Registrar and where lawyers may be present (unlike the informal mediation referred to in Step 1). The aim of the conciliation conference is to encourage each of you to reach an agreement about your finances, arrangements for your children, and how you will divide your property and assets.

If you still don’t have any luck reaching an agreement, then your matter will go to a hearing before a Family Court or Federal Circuit Court Judge.

Getting to the point where you need the Court to resolve these issues is undesirable for a number of reasons. Firstly, the Court process is extremely expensive and can be highly stressful. Secondly, the power over crucial elements of your life is taken from you and controlled by the Court – something the Court would much rather have you determine for yourself.

Bear in mind that if you have already obtained a divorce certificate, then you have 12-months to finalise these arrangements.

Quick tip: Do everything you can to reach an agreement between you and your partner on your own. It is much more cost effective, less stressful and faster to only contact a family lawyer once you have come to an agreement on the big issues. That way it is just a matter of formalising arrangements with consent orders.

Step 4 – Officially ending your marriage (Divorce Certificate)

If you have been separated for 12-months and still wish to get divorced, the final step is to apply for a divorce certificate.

Only one person needs to make the application. Although if the application is made jointly it makes the process much more streamlined by removing the need for you to have documents served on your partner.

The main requirement that needs to be satisfied in an application for a divorce certificate is that you and your partner can show that you have been separated for more than 12-months and that there is no reasonable likelihood of resuming married life.

If this step seems a bit daunting, you can seek a family lawyer’s help when making your application. They can then appear on your behalf when the application goes before the Family Court.

This final step is really just an administrative and lawful acknowledgement that your marriage has ended.

To make an application for a divorce certificate:

Complete an online application for divorce at the Federal Circuit Court website
Upload a copy of your marriage certificate at the time your application is made (if you don’t have a copy you will need to apply for one from the Births, Deaths Marriages Registry in your state or territory)
Where you are making a joint application for divorce with your partner, there is no need for any documents to be served
Where you are making the application on your own, your application for divorce, together with a Marriage, Families & Separation Brochure must be served on your partner at least 28-days before your hearing date
Service of your Application for Divorce and the Marriage, Families & Separation Brochure can be by post or in person
An Affidavit of Service by Post or an Affidavit of Service in Person must be sworn and witnessed by a solicitor or Justice of the Peace
An Acknowledgement of Service must then be signed by your partner to confirm that he/she received the documents as well as the date they were received
The Affidavit of Service and Acknowledgement of Service must be filed with the court before your hearing date
If you have minor children, then you, or you and your partner, or your lawyer must attend the hearing
If you don’t have minor children, then neither you or your partner are required to appear at the hearing
Once your application has been approved by the Federal Circuit Court Magistrate, a Divorce Certificate will be sent to you and your partner, officially ending your marriage.

Further Information

To contact a legal professional specialising in family law who will cost out each stage of the Family Court processes (and minimise legal fees) visit:

Legally Yours

Email Karen Finch here for a complimentary consultation and fixed-fee quote; or
Phone 1300 822 708.

For more information on ‘do it yourself’ divorce kits, visit:

Family Court of Australia

**This article was written in conjunction with Kimberley Smith, an experienced family lawyer with Legally Yours.

Have you, or someone you know, tried a DIY divorce or opted for a hybrid option which uses a family lawyer at specific stages of the process? What were your impressions and experiences? Let us know in the comments!

Life Guides for Gen Y: The Fundamentals of DIY Divorce

Legally Yours — Mon, 24 Oct 2016 00:31:00 +0000

In previous years, the impact of tech disruption in the global travel and hotel industries has been enormous. Demand for faster, easier and more cost-effective online flight and hotel bookings has given way to holidaymakers cutting out travel agents as the middleman in favour of organising flights, accommodation, and activities themselves.

The effect of tech disruption in the Australian legal industry has had a comparably major impact. Digital access to ‘cloud-based’ lawyers, reduced cost and fixed-fee services have become more mainstream, along with a steady increase in demand for access to online legal information. Many Australians, as far as possible, wish to increase efficiencies and save money by handling early stage legal issues themselves.

Now, when it comes to divorce and the separation of assets, more and more Australians are seeking the ‘do it yourself’ option. One that involves accessing legal information online to reduce the time, cost, stress, and anxiety some Australians experience, or think that they will experience, when consulting a lawyer.

But how feasible is this option? Is it simply a matter of downloading relevant information and lodging the correct documents with the Family Court? Or is the process a little more complex, confusing and difficult to achieve alone? If the decision to get a divorce has not been mutual or amicable, it can be a very scary, overwhelming, stressful and expensive stage in your life. The costs associated with divorce (and lawyers) can also be frightening.

If you are considering the ‘DIY divorce’ route, below we outline the basics of the divorce process as well as the relative pros and cons of ‘going your own way’ without the help of a lawyer.

What Does ‘Getting A Divorce’ Mean?

When it comes to the full spectrum of human emotion, divorce is consistently ranked alongside the death

of a loved one as one of the most traumatic experiences anyone can go through.

Most of us don’t even realise that the word ‘divorce’ can actually entail three different elements:

Obtaining a divorce order which recognises that you are no longer married
Obtaining a property settlement (i.e. dividing your marital assets); and
Obtaining parenting orders, where there are children under the age of 18 years.

When Can I Obtain A Divorce Order?

To become legally divorced (by obtaining a divorce order), you first need to show that you have been separated for over 12 months.

For this reason, it is a good idea to document the date your separation occurs.

If you have been married for less than 2 years, you may also need to show that you have attended couples counselling.

In situations where you have been separated but continue to live under one roof, it is also imperative that you document when this arrangement first started, as this period can be included in the calculation of your 12 month separation.

Once you and your spouse have been separated for over 12 months, one of you can make an application to the Family Court for a divorce order.

When this is granted, a certificate is issued by the Court which declares that your marriage has now ended.

I Have A Divorce Order, Now What?

Once you have received a divorce order, you usually have 12 months to use the Court process to seek orders which relate to the division of your assets and parenting of any children under the age of 18 years.

You do not need to be divorced, or separated for any particular period of time, to seek a division of assets or parenting orders for children under 18 years, or enter into a Binding Financial Agreement.

In fact, it is often recommended that you discuss with your partner and decide on the division of assets and parenting orders prior to applying for a divorce order.

The Pros And Cons Of DIY Divorce

Now your decision comes down to whether you should do any of these things yourself or whether you should contact a lawyer to help you.

Before speaking with a lawyer, it is worthwhile to consider counselling or informal mediation with your

spouse.

As you would imagine, it is usually far better (and less costly) to reach an agreement amicably rather than by fighting it out in court. It is important to remember, however, that any arrangements you make at this stage may not be legally binding until they are registered as Final Consent Orders with the Family Court or signed off by two independent solicitors in a Binding Financial Agreement.

The Family Court is focused on what is just and equitable and, therefore, will not approve Orders or Binding Financial Agreements that disadvantage either person.

Advantages

The main advantage of a ‘do it yourself’ divorce is that you save money on legal fees.

The Family Court website has Divorce Kits that can be completed online. This is a simple process where there are no children under 18 years and there are minimal assets to divide.

However, if you do have children under the age of 18 years, you will be required to appear in Court. In this scenario, without the assistance of a lawyer to talk you through court procedures and what may be expected of you, it can be a pretty daunting experience.

Disadvantages

The main disadvantage of acting on your on own behalf in a family law matter is the difficulty in reaching an agreement.

Even in amicable separations, emotions can run high which can make coming to an agreed landing on the division of assets, or care of children, virtually impossible.

The benefit of having a lawyer working for you is that they can negotiate in your best interests in an impartial way and advise you on your likelihood of success.

A secondary disadvantage of a ‘do it yourself’ divorce, if you don’t have legal training, is the possibility of facing avoidable mistakes and significant delays.

Lack of familiarity with court documents and processes, particularly when combined with the inherent emotional strain of a divorce, can result in important steps and items being missed and incorrect processes being followed.

You may have all of your required affidavits and documents filled out and witnessed by the correct people, for example, but one missing date or a signature in the wrong place can unexpectedly send you back to square one and needing to start the process from scratch.

If you are on tense terms with your former spouse, making additional arrangements to meet and to re-sign papers can put you under extreme and unnecessary stress and pressure.

In some cases, you may need to contact a family lawyer to help you sort out any errors. Sometimes correcting issues at this late stage can be more expensive than if a lawyer had been involved from the outset.

It is also critical that any agreement you and your spouse reach is registered as Final Consent Orders with the Family Court, or as a Binding Financial Agreement.

If you don’t enter a formal agreement, there is a risk that your ex-spouse can make a claim on your assets many years down the track.

The best way to make sure that you don’t expose yourself to an unnecessary risk of a further claim against your property or assets in the future is to seek legal advice.

The reality is that obtaining a completely lawyer-free property settlement is nearly impossible.

Hybrid Solution

If you are an informed, efficient and motivated person who wishes to the keep costs, anxiety and complexity of your divorce to a minimum, a mixture of ‘do it yourself’ divorce and legal representation may be the answer you are looking for.

To do this, try to resolve as many issues as you can between you and your spouse (such as the division of assets and arrangements for the care for your children), before seeking legal advice.

This strategy will help to keep costs down and will also mean a more successful and harmonious relationship once your property settlement and marriage dissolution have been finalised.

Further Information

To contact a legal professional specialising in family law who will cost out each stage of the Family Court processes (and minimise legal fees) visit:

Legally Yours

Email Karen Finch here for a complimentary consultation and fixed-fee quote; or
Phone 1300 822 708.

For more information on ‘do it yourself’ divorce kits, visit:

Family Court of Australia

Have you, or someone you know, tried a DIY divorce or opted for a hybrid approach? What were your impressions and experiences? Let us know in the comments!