The 5 Questions Clients Always Ask at the Start of Their Divorce and Separation
As a family lawyer, I have seen many clients and found that there are some commonly asked questions that always come up early in our sessions.
Divorce and separation are never easy, and it’s normal to feel unsure about what’s next. To help you start the process with more clarity, I’ve answered the top five questions my clients ask at the beginning of their journey.
The top questions that come up include:
- Will i be able to keep the family home, or do i have to move out if it’s not in my name?
- Will the children spend equal time with each parent?
- What happens to my and their superannuation?
- Can we go to mediation?
- How long do you have to be separated before you can get a divorce?
Read my answers below…
Will I Be Able to Keep the Family Home, or Do I Have to Move Out If It's Not in My Name?
One of the most common concerns clients have is whether they can stay in the family home or if they have to move out, especially if the house isn’t in their name. The good news is that just because the home isn’t in your name doesn’t mean you have to be the one to leave.
In Victoria, both parties have a legal right to stay in the family home until a property settlement is reached, regardless of whose name is on the title.
However, staying in the home involves more than just the legal right to remain there. We’ll need to consider:
- Whether keeping the house is financially feasible for you
- How the home is owned (jointly or individually)
- The best interests of any children involved
- Whether the current living arrangement is causing tension
Staying or moving out is a big decision, and it’s important that you explore your options and figure out what works best for you and your family.
Will the Children Spend Equal Time with Each Parent?
This is an emotional and often tricky part of separation. Every parent wants what’s best for their children, but figuring out what that looks like can be difficult. Many of my clients are anxious to understand if their children will spend equal time with each parent.
In Victoria, there’s no strict rule that children must spend equal time with each parent—it all depends on what’s in the children’s best interests.
Courts and mediators will consider factors such as:
- The children’s needs and preferences
- The practicalities of equal time, like work schedules and living arrangements
- The potential impact on the children’s routines
At the end of the day, the goal is to find a solution that works for everyone, especially the children.
What Happens to My and Their Superannuation?
A common concern during separation is understanding how superannuation will be treated, especially when one partner may have a higher earning capacity due to their career or business while the other may have taken on the primary caregiving role, often resulting in lower superannuation contributions. This difference can significantly impact your future financial security and lifestyle.
In Victoria, superannuation is treated as property, meaning it forms part of the overall pool of assets that can be divided between both parties. Whether it’s your superannuation or your partner’s, the law ensures that super is included in the financial settlement, just like the family home or any savings.
How is superannuation divided?
The division of superannuation depends on several factors:
- The total value of assets accumulated during the relationship
- The length of the relationship and contributions each party made
- What a fair and equitable distribution looks like in your circumstances
It’s important to remember that the split doesn’t have to be equal, but it should reflect the contributions of both parties—financial and non-financial (like child-rearing or managing the household).
If both parties agree, superannuation splitting can be settled through mediation. If an agreement can’t be reached, the court can step in and make a superannuation splitting order.
As a family lawyer and mediator, this is an essential aspect of most settlements: ensuring that superannuation is included in your settlement discussions to secure what you’re entitled to and safeguard your future.
Can We Go to Mediation?
Yes! Mediation is not only an option but often encouraged, especially in family law matters. At Village Family Lawyers, we recommend mediation as a way to resolve disputes around parenting arrangements, property, and finances.
Why? Because mediation is generally faster, less stressful, and more cost-effective than going to court.
Plus, it allows you to maintain control over the decisions rather than having a judge decide for you.
That said, mediation isn’t always suitable, especially if there’s a history of family violence or if one party isn’t willing to negotiate fairly. We can guide and advise you on whether mediation is the best path for your specific situation.
How Long Do You Have to Be Separated Before You Can Get a Divorce?
In Australia, you must be separated for 12 months before applying for a divorce, and this rule applies across all states, including Victoria.
Interestingly, you can still be considered “separated” even if you’re living under the same roof, as long as you’re leading separate lives (for example, sleeping in different rooms and not sharing finances).
Once the 12-month separation period has passed, either party can apply for divorce, regardless of whether the other party agrees. It’s important to remember that divorce is just the legal end of the marriage. Property settlements, parenting arrangements, and other aspects need to be dealt with separately.
Wrapping Up
We know that starting a separation or divorce can feel overwhelming. These are just a few questions our clients ask when they begin this journey. The good news is that you don’t have to figure it all out alone.
At Village Family Lawyers, we’re here to help you every step of the way.
Got more questions?
Feel free to reach out, and we can help you understand your options and find the best path forward. Call us so we can help you navigate your situation on 1300 413 997. We have some cost-effective initial consultation packages , or you may want to download our helpful Separation Checklist to get you started on this journey
About Laren Wilson
Lauren Wilson is the Founding Principal and Director of Village Family Lawyers, with a wealth of experience in helping clients navigate the complexities of separation and divorce. As an AIFLAM Nationally Accredited Mediator, Lauren brings a compassionate and practical approach to family law matters. Her unique background, including a career as a school teacher and her role as a mother, gives her a deep understanding of family dynamics, particularly in parenting disputes.
Lauren is passionate about resolving family law issues through non-litigious means, and she excels in negotiation, mediation, and preparing consent orders. However, she is equally adept at representing clients in court when necessary, with extensive litigation experience in the Federal Circuit and Family Court of Australia.
Her holistic approach ensures that clients receive comprehensive support, often collaborating with psychologists, financial planners, and other professionals to achieve the best outcomes.
Lauren’s dedication to her clients, paired with her ability to guide them through challenging times, makes her a trusted and respected family lawyer. Find out more about Lauren here.