Divorce is painful, and the process of separating can be profoundly stressful and deeply emotional. Understanding the financial implications of a divorce is vital, particularly regarding spousal support.
The need for this support arises when there’s a substantial discrepancy in the earning capacities or financial resources of the two parties involved. It’s a form of financial aid designed to provide continued income to the lower-wage-earning or non-wage-earning spouse.
Spousal support isn’t meant to punish one party; instead, it acknowledges the economic impact of separation on one party that might otherwise be facing financial hardship. It’s determined based on unique circumstances, and understanding your rights and responsibilities can help you make the right decision. Here’s what you need to know.
The Foundation of Spousal Support in Australia
The Family Law Act 1975 legislates spousal support in Australia.
If one party cannot support themselves financially, that responsibility falls on the shoulders of the former spouse or de facto partner. Spousal support is generally a temporary arrangement. The court may or may not assign a timeframe to the support, but it is usually until the recipient establishes financial independence.
The court will take several factors into consideration when determining whether spousal support is necessary.
· The length of the de facto relationship or marriage
· The standard of living
· The financial situations of both parties
· The ability to work
· The age of the parties involved
· Whether there are children
· Each party’s contribution to the relationship
Legal Processes Involved in Divorce and Spousal Support
After divorce papers have been served, the property settlement process can begin.
Financial disclosures include income, assets, and liabilities at this stage. Failure to comply with this or to be open can lead to serious consequences. Now, the mediation process can begin, and if you cannot settle your property settlement at this stage, it will go to court and a judge will decide.
The Family Law Act 1975 guides the court’s process for determining whether there is a cause for spousal support and how much.
Either party is free to file an application for spousal support, either during the divorce or separately. The court will take all of the factors into consideration before deciding the duration and amount of spousal support due before issuing a consent order.
The Role of Prenuptial Agreements in Spousal Support
A Binding Financial Agreement can play a significant role in financial matters during a divorce, which includes the potential for spousal support. A well-drafted agreement could sway the court, and not only can it streamline the divorce process, but it could also negate the need for spousal support.
Typically, a Binding Financial Agreement details how the property and financial resources are allocated if a couple should divorce, and outlines a need for spousal support. Always work with a lawyer when writing a Binding Financial Agreement to ensure it is legally binding; it may be a way of overriding the court process.
Modifications in Spousal Support: Adapting to Changing Circumstances
Spousal support is usually a short-term outcome, but you can make an application for modification if circumstances change. Valid reasons for modifications include a change in circumstances, including financial, employment or health. Regardless, before you move forward you should speak to your lawyer about your options.
If you move forward with a Binding Financial Agreement, it has to be airtight.
Practical Guidance for Navigating Divorce and Spousal Support
The earlier you take legal advice, the better. You have to be open to negotiations at every step of the process, and enlisting legal professionals early allows them to take the lead and give you relevant advice to protect your best interests.
When you sit down in mediation, be open-minded. Emotions may run high, but they need to be set aside to deal with the negotiation fairly.
Mediation is led by each side’s lawyers and it isn’t about assigning fault, rather it’s to find a way for everyone to move forward. It is less stressful and more cost-effective to agree during mediation than it is to drag the process out and go to court. Let your lawyers take the lead.
If things change post-divorce, speak to your lawyer about modifying your spousal support terms. Ultimately, if one party is receiving spousal support, it is for a short time until they can financially support themselves.
Final Thoughts
The end of a marriage is sad, but if your relationship is coming to an end, you need to take steps to protect your financial future.
Divorce is stressful and emotional, so finding a way forward is a must, and it’s easier to do when you have good legal guidance. If you are seeking to divorce in Australia, you need divorce lawyers you can trust to provide sound legal advice and emotional support through a difficult time.
As divorce lawyers in Sydney, we can offer the legal guidance and support necessary to navigate this stressful life experience. Get in touch with the AJB Stevens team today to schedule a consultation.
