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Refusal to settle

My ex and I did the legal aid conference thing after seperating, pretty much agreeing on the debts to be share and paid, and 50% shareing off assets. This mean't he kept his super at the value of the time, and I kept the house.

3 years later the debts have been taken care of. But he refuses to sign anything regarding the rest. His excuse is that my solicitor wants to rip him off as she requested he disclose all his super for the paperwork required. He has ignored all communication but tells me he will comply if I change solicitors.

So here is the plan. It will have to go to court, and my solicitor is now instructed to start proceedings. I will use her for the initial appearance, then if it looks like it will drag on as per his promise to do so in order to break me financally and force the sale of the house to pay costs, I will self represent. I have a couple of queries from reading and speaking to others I would like to clarify before I make my final "demands".

  • The house was worth $75,000 when we split. I have done some renovations to repair dangerous and leaking areas. I understand that the split will be on the current value of the house, less any costs involved in renovating. The renovations are not complete and no further work is planned until after settlement. My ex has already argued that I have devalued the house by starting renovations and that he should be recompensed for that, my argument is that I have not only improved it but made it a safer place to live. Who is correct?
  • Assuming he still agrees to the 50/50 split, is the 50% of his super taken from the value as is when we split, the value when it goes to court OR is it 50% of the projected value at maturity?
  • Is there a choice of going for a percentage of the value of super now, or the mature value?
  • Does the value of super awarded as part of settlement get paid at settlement or when the super matures?
  • If the person who has to pay out a lump sum as part of settlement has no money how is payment then made?
Thanks

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
Jadzia, welcome to the other part of the seperation nightmare.  It isn't as easy as it seams.  I was lucky enough not to have any children from my marriage but the division of the marital asset pool has caused many a late night pondering the meaning of life.

Even though I had been seperated for over 14 months the courts require a current property appraisal as well as the current value of all superannuation interests.  "NOT AT THE TIME OF SEPERATION".  As far as I know, if the superannuation is NOT in the payment phase (like a pension) it has to be taken at todays value, not a future value.

As with the split, for example say the house is now worth $100,000, your super is worth $25,000, your X's super is worth $200,000, which gives a total asset pool of $325,000.  A 50/50 split would mean that your x would have to pay you $37,500.

This was the basic scenario I was looking at and my x was asking for, it did not work out that way because my contributions both financial and non financial were quite considerable

Contributions brought into the relationship, the length of the relationship, contributions from family and friends, the list goes on which is taken into consideration

Every settlement is different.  The more you can prove in the way of contributions the better.

The best advise anyone can give you is that if you can settle amicably with the x without bringing in other parties, lawyers etc, the better.

As quoted all through the site, try not to bring emotions into it.

This is only my experience   
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IsntLifeGrand said
Even though I had been seperated for over 14 months the courts require a current property appraisal as well as the current value of all superannuation interests.  "NOT AT THE TIME OF SEPERATION".  As far as I know, if the superannuation is NOT in the payment phase (like a pension) it has to be taken at todays value, not a future value.

I'm not sure that they do need that stuff. My divorce went through without those (that was 2005), it was a joint application though (if that'd the right term).
My settlement was at the beginning of this year and they required current values of all assetts.

Jadzia, were consent orders written up at the time, if so why would your lawyer want the current value of your X's super.
IsntLifeGrand said
Even though I had been seperated for over 14 months the courts require a current property appraisal as well as the current value of all superannuation interests.  "NOT AT THE TIME OF SEPERATION".  As far as I know, if the superannuation is NOT in the payment phase (like a pension) it has to be taken at todays value, not a future value.

 
Jadzia and IsntLifeGrand,

We agreed to use the value of the house on the day it sold, within a year separation, and the value of superannuation on the date of separation.

That was not a legal requirement, just what we agreed to.

The thing I discovered with superannuation, even when not in the payment phase, was the importance of an actuarial valuation if there will be a pension on retirement. 

The face value of such a superannuation plan, even taken at a date before separation, is significantly lower than its actual value because the value of the part of the future pension that has accrued to that date also needs to be considered.  It can make hundreds of thousands of dollars difference.

Short answer, an actuarial valuation may be worth the expense, especially if there is the complication of a future pension rather than a straight forward lump sum.



My ex didn't disclose all his super at the time of the conference, and has also refused to sign any orders that were made as a result, including those concerning children.

I would like to avoid court - which is why it has taken 3 years to get this far as I hoped he would see reason and sign.

Basically all prior agreements are worth nothing if he won't sign, and his argument since has been that he wants me to take it to court as he believes the resultant costs will force the sale of the house and I will end up with nothing - rather than settle 50/50 now and both end up with something.

Thanks for the advice - I am currently preparing the financial statement for my solicitor and will see where we go.

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
Hey Jadz, Were you divorced? (I'm thinking s 44 (3)
seperated april 2005, legal aid meeting nov 2005 (I think - memory hazy) divorced march 2008.

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
To me it seems your X is right on par as you have described in other posts.

It appears he is simply trying to increase your pool to cover his own to aspire to being the good person and one who can use this statement as relevant truth, his battle is embroiled and based emotionally.

Unfortunately with out making the neccessary application to the court this will leave you with no truth about his situation and your rights. This may well be because of the high payments he has made to super perhaps in a way to diminish responsibility.

It becomes a decision as to what you feel is livable concerning situations.

In my case when we agreed upon orders by consent the financial value was not taken into consideration as much as that we both agreed to the conditions, this was in front of a magistrate and was the minimal I would accept, I lost at the time but gained in the long run, I retain the house and debt but gained a home.

If you want more definitive monetary disclosure I would believe you would need to apply through the courts for financial settlement.

Just some thoughts
   
Yeah since I HAVE to take it to court to get everything legally settled I am not interested in past agreements and will let the judge decide based on who has contributed what. While he has worked full time the whole time we were married I also worked full time for about half the time plus had my own business as well as 3 children to him. From my understanding that makes my contribution more.

Trouble is he is claiming I did NOTHING in the way of housework etc and that I slept around etc which isn't true. Still I guess onus is on him to prove that.

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
It really doesn't look like there are any past agreements simply attempt to mediate with out judicial decision.

Reply to things that you feel are wrong with statements of truth then not much can go wrong, I doubt trying to push the " She did nothing " argument may have a limited effect if well grounded with evidence but not as much as you fear.

Clinical proof and statements the same old chestnut.

Best of luck finding balance
Ok I have the same problem.  Here what happening.  Separated in Aug 2006, had to attend at a conference with the court in May 2007 - Ex's lawyer was not ready and case went to another conference in Nov 2007  - "Agreement" was reached at conference.  In Dec 2007 Received letter making claims that I touched my boys inappropriately and ex wanted 90%  Back and forth it goes between my lawyer and hers each letter costing me money   Was told that she sign and and it "got lost" in registered post.  Any ideas anyone
Can the lawyer and correspond direct with her lawyer, deliver th mail personally and request that you pick the response up personally, little different in different if your in a different state.

Boils down to once again there is a tendency to lie by all concerned as there is no deterrent for this.

Basically with out that court stamp it's just a piece of paper.

Make an application to the court for financial orders and include the letter that she was suppose to sign an an annex, this may help encourage settlement if not you will be on the way at least.

If you are talking children's issues it's a more complex scenario that will take a different strategy.
I hope you have some physical reference to admission to signing the agreement.

Every little confirmation that is recorded can help if presented in the right way.

I remember being very keen on settling out of court and through mediation, all I wanted was for the X to take responsibility for her part in the financial burden, she wanted to keep everything and for me to have the debt. This was acceptable to me but I just wanted her to realize that she had a responsibility. This is an emotional need and not a necessity to move forward. She lawyered up and made an application to the court, letters went back and forth and because I self represented each letter cost the price of a postage stamp where hers cost the price of a lawyer. By the time we went to the first hearing in front of the magistrate I estimated it had cost her $20 G+ a lot more than I had anticipated recovering so I simply agreed to orders by consent.

Simple point is make you boundaries decide action and stick in there until you can live with the outcome, even if the other party feels they have won you will have met your personal conditions and be able to accept.

This isn't advice simply a possible option to work towards to achieve balance in your life.

Best of luck I hope this helps a little.
D4E- Thanks for your advice.  I do and did want to settle out of court at least I did get monies to pay off the debts.  The problem is she sold a house - she own with a family member 3 weeks after the separation and I did not found out about it until a settlement letter arrived from the her lawyer in Nov 06.  We both sold a property (joined owned) and this monies is in trust earning no interest. This is were I got the monies to pay off the debts.  I guess she does not need the money right now (that is in trust) so it is getting dragged, if she did not have the other money or it was in trust she would be more will to negotiate  
Is there a reason why this money was not included in settlement ?? or was it taken into consideration ?

Don't forget the letter from the lawyer is only an offer to settle and you do not have to accept this as being your only option.

Now that you do know about the sale which indeed she has declared does this make a difference to the financial pool ?

I am now in the process of going to court in June and have sought to have the house while leaving my ex with his super. In my financial statement I had to include all my assets, liabilities, income and expenditure including those incurred SINCE separation. I now have a letter from his solicitor requesting statements for a personal loan acquired since separation, and wanting to know when I got the loan and what I got it for plus full particulars in regard to other liabilities. He also wants full information on ALL my superannuation despite my solicitor informing me that my defence force superannuation acquired before marrying is not to be included in settlement.

Why would this information be required? surely my current financial position is my business and since I am not only claiming 50% of assets and not asking to be supported or claiming to be disadvantaged financially he doesn't need to know?

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
Jadzia said
Why would this information be required? surely my current financial position is my business and since I am not only claiming 50% of assets and not asking to be supported or claiming to be disadvantaged financially he doesn't need to know?
He also wants full information on ALL my superannuation despite my solicitor informing me that my defence force superannuation acquired before marrying is not to be included in settlement.
 The requirement on both parties for "fuul and frank disclosure" are warranted. The failure to disclose can injuriously affect your case. The credibility of a party is very important as each judgement apportions paragraphs to the issue.

What you really want is an outcome that allows you to live anew your life.

Under the process all information is on the table. A prompt disclosure reduces stress and legal expenses. Regardles of what you seek the validity of any judgements or consent orders are subject to appeal/review if it is learnt that undisclosed assets might have affected an outcome.

The details in regard of the loan you have is best disclosed. Any post-seperation transactions up until the time of a trial are included in considerations. It is unwarranted to stall with disclosure if one is using a solicitor. They will simply acquire  a portion of what is sought to be obviated through their letter and phone calls and costs.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
Thanks Verdad, I understand that I need to supply the information and have every intention of doing so, I just don't understand why the other party needs information on a loan taken out a couple of years after separation, and why what I used it for and copies of statements showing payments is relevant.

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
Jadzia said
Thanks Verdad, I understand that I need to supply the information and have every intention of doing so, I just don't understand why the other party needs information on a loan taken out a couple of years after separation, and why what I used it for and copies of statements showing payments is relevant.
 

Sometimes things like loans, assets and credit cards, show up little details that point to another 'non declared income stream. They are just checking the info that you have already told them - it is all very normal.



Monti

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
Ok, that sets my mind at ease. His solicitor has advised him NOT to accept the terms of the order (50/50) so I am fearing that he is going for a lot more.

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
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