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Protecting Your Assets After Separation

April 11, 2012 | Comments: 0 | Views: 167

There are 2 main aspects to protecting your assets after separating from your spouse.

Firstly, there are actions to take to preserve property, to ensure that it is not dissipated, de valued or alienated (disappearing or transferred to others outside the marriage) or lost forever. Examples of such protections are:

  • caveats over land which is owned by only one of the spouses to avoid a sale or refinance without the other's knowledge or control
  • notifications to banks both informal and formal to freeze further advances on loans and mortgages
  • court injunctions against a spouse or a company they control to do or not to do something which affects the assets of the marriage

Secondly there are agreements and court orders which can be made to ensure that any division of property is final and there is no "come back". These include consent orders, orders of the court and binding financial agreements.If you can reach agreement with your spouse even without the help of lawyers, it is really important to have that agreement formalised into a binding legal document.

What is a binding legal document?Requirements are different from country to country but in Australia to make a property settlement agreement binding and avoid any "come back" or "second go", it really has to be in a form that complies with the legislation and rules.Generally it would be in the form of consent orders (agreement approved by the court) or it can be in the form of a binding financial agreement (agreement signed by both parties after they have receive independent legal advice from their own lawyer and each lawyer has also provided a signed certificate to confirm that they have indeed given legal advice to their client about the advantages and disadvantages of their client signing and entering into the binding financial agreement.

What's better- consent orders or binding financial agreement?Depending on the lawyer drafting the agreement and their fee structure, you may find that consent orders will be charged out at a higher rate than the drafting of a binding financial agreement for the same set of facts and terms of agreement, however fees vary from lawyer to lawyer and it is best to get either a fixed quote or estimated range of fees and compare.Some separated couples they may wish their agreement to be not seen by any court or made public and therefore prefer to go with a private binding financial agreement.For other couples, when one of them refuses to get independent legal advice and just wants the agreement signed up and made legal, they would go for the consent orders option (in which case the court can still not grant approval if in the court's opinion the unrepresented party is on the face of it getting far from a fair outcome).A binding financial agreement cannot deal with agreed children/parenting arrangements.There are a lot of other differences between the two types of written agreements and for specific advantages and disadvantages applicable to each case it is best to get legal advice after explaining one's particular situation.In my practice I find that binding financial agreements are becoming far more popular than consent orders these days when parties have only property issues to resolve.

To claim your free legal consult for any new family law enquiry, simply email your request for an appointment to or telephone Rigoli Lawyers on (03) 8742 3199.

Source: EzineArticles
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