Divorce and Child Custody Matter
The client is seeking guidance on child custody, property division, and spousal support amidst a divorce. They have two children, aged 10 and 8, for whom the client is currently the primary caregiver. The family home is jointly owned and valued at approximately AUD 1,000,000, with an outstanding mortgage of around AUD 580,000; the client's spouse wishes to retain ownership post-divorce. The client earns about AUD 160,000 annually, while the spouse earns approximately AUD 35,000 part-time, and no spousal support arrangements have been agreed upon. No steps toward financial separation or dispute resolution have been initiated.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkHow is child custody typically determined, and what factors will the court consider in deciding the living arrangements for our children?
Child custody is determined based on the best interests of the children, considering factors such as the children's wishes, each parent's ability to care for them, and the current caregiving arrangement. The court evaluates the children's relationship with each parent, any history of family violence, and the impact of separation on the children. Given you are the primary caregiver, this may weigh in your favour. The court's priority is ensuring the children's safety and welfare and promoting meaningful relationships with both parents.
How is the equity in our house likely to be divided, and what are the implications if one of us wants to keep the house?
The division of equity in the house will depend on the property settlement process. The court considers financial and non-financial contributions, future needs, and the welfare of the children. If your spouse wishes to keep the house, they might need to buy out your share of the equity, which could be around AUD 420,000. This might involve refinancing the mortgage solely in their name, assuming they qualify.
How is spousal maintenance calculated, and under what circumstances might I be required to pay support to my spouse?
Spousal maintenance is determined based on one party's need for support and the other's capacity to pay. Factors include both parties' incomes, financial resources, and expenses, as well as childcare responsibilities. Given your higher income, you may be required to pay maintenance if your spouse cannot support themselves adequately, also considering the duration of the relationship and the standard of living during the marriage.
What steps should we take to formally separate our finances and properties during the divorce process?
To formally separate finances and properties, start with a Financial Agreement. This includes documenting the division of assets and any debts, such as the mortgage. Financial disclosure may be necessary for transparency. You may also need a Consent Order from the Family Court to legally enforce the agreement. Consulting a family lawyer is advisable to ensure compliance with legal standards.
What alternative dispute resolution methods should we consider to amicably resolve these issues without going to court?
Mediation is a commonly recommended alternative dispute resolution method. It allows both parties to negotiate custody, property, and support matters with a neutral mediator. This collaborative approach can help address issues effectively, especially in co-parenting scenarios.
