Are you considering a divorce or separating from your spouse or partner? Separation is a challenging time, often fraught with tension. Along with the emotional turmoil of a break-up, there are the property division and financial support arrangements to work through. When children are involved, things can get even more complicated.
In this article, we will explore the top five most frequently asked questions we receive from clients looking to take this step.
Who gets to stay in the house?
There is no black and white answer to this question. Typically this is worked out by agreement.
Many factors come into play including whether there are children, any difference in income between partners and practical arrangements (e.g. alternative accommodation options).
If you’re unable to agree and staying in the same house is untenable, you should obtain legal advice about your options.
What financial support can I receive/do I need to provide?
Whether one partner needs to support the other financially following separation will depend upon various factors. “Spousal maintenance” may be payable whether there are children or not. If upon separation one partner is left in a position where they cannot meet their reasonable needs then the other partner will need to continue supporting them financially (so long as that person can pay). There is no defined period in our law, and the lifestyle of the person who requires maintenance will be relevant to the amount that needs to be paid. Reaching an agreement and obtaining advice on this issue early on is essential.
Also, if there are children of the relationship, then one parent may be liable to pay child support. Child support is payable until a child turns 18 (or if 18 and still at school until they finish school). Child support is calculated having regard to the age of the children, each parent’s income and the care arrangements for the child/children. You can access the child support liability calculator on the IRD website at www.ird.govt.nzchildsupport/calculator-child-support-liability-entitlement.
Who pays the bills while we work things out?
This will depend upon who has the ability to pay, who remains in the home, what each party earns and whether child support and spousal maintenance is payable.
If you have a mortgage, it may be possible to negotiate a ‘mortgage holiday’ with your bank or interest-only payments for a period to make financial matters a little more comfortable while separation issues are resolved.
Do we have to share the care of the children equally?
It is up to parents/guardians to agree on care arrangements that work best for their children. What works for children in one family may not work for another. For some children, equal shared care works well, and for others, it is a disaster. Much will depend on the age of the children, their relationship with each parent and practical arrangements such as parents and children’s commitments/activities.
If shared care is an option, there are several ways that can work. It doesn’t have to be a week about; there are many different options.
If you’re unable to agree on care arrangements, you can try Family Dispute Resolution mediation and the Parenting Through Separation programme. For further information go to www.justice.govt.nz/family/care-of-children/
You may also want to seek legal advice about childcare and guardianship matters so that you are fully informed.
Do we both need a lawyer?
To have a binding agreement recording the division of your relationship property, yes, you will both need to have independent legal advice (different lawyers from different firms).
That doesn’t stop you negotiating an agreement between yourselves, but you will each need to receive independent legal advice to ensure the agreement is binding, and sign the agreement with your lawyers.
If you are negotiating yourselves, it is a good idea to first obtain legal advice as to your rights, obligations and the process, so you are fully informed throughout all stages.
FOR MORE INFORMATION:
If you are considering getting a divorce or are separating, getting early legal advice will ensure that you are well-informed about your rights and obligations. Morrison Kent’s expert family lawyers can assist with all aspects of the separation process. We listen to your needs, explain the law and legal processes in plain language and consider practical solutions to achieve the best outcome for you. We aim to help clients resolve their matters outside of court; if that is not possible, we have the expertise to represent clients throughout the court process also.
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