When should I apply for a Divorce?

22 April 2015

A Divorce Order provides legal recognition of the fact that that you are no longer married. Upon a Divorce Order becoming final, you are legally free to re-marry should you wish to do so.  In order to apply for a Divorce, you must firstly be separated for at least one year.  That does not mean that during the period of separation, there are no legal steps to take.  Once the separation takes place, most people are keen to know what their legal rights and obligations are in relation to parenting of children and financial matters.  It is important to deal with those issues as soon as possible- there is no need to wait for 12 months before obtaining legal advice.  If you delay, then it may cause adverse consequences for you.  Even if you have no intention of applying for a Divorce as soon as the 12 months is up, it is best to consult an experienced family lawyer as soon as you separate.  If you get the best legal advice quickly, rather than getting through the separation the best you can without legal advice, it will arm you with knowledge of what to expect in any settlement- whether you settle before Divorce or after Divorce.

It is a common misconception that you have to wait until you are divorced before you can agree to legally settle financial arrangements with your spouse or partner.  You do not have to wait.  In fact, in some cases it is essential to take legal action quickly in order to protect the children (and also to protect the assets).  If you wait a long time before you consider a property settlement, it may disadvantage you. 

Let’s take this typical example of a Melbourne couple (Troy and Tracy) in their mid- forties with school-aged children.  At the date of separation, there were substantial savings of $120,000.  Tracy, feeling incensed at Troy having left her for the 25 year old hairdresser who lived in the apartment block across the road, spends most of those savings in the best Melbourne fashion boutiques and eats at the best Melbourne restaurants drinking the best Australian wines.  The savings only last three months.  Whilst Tracy is living it up, Troy opts to lead a quiet life enjoying the simple pleasures staying in most nights with his girlfriend- unless he is looking after the kids whilst Tracy is out.  Troy will find that most of the money which Tracy has spent living the Melbourne high-life cannot be recouped or added back in when negotiating a property settlement down the track.

So, don’t hesitate, spend some money on getting the best family law advice early- waiting until it’s time to get a Divorce is too late!

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