QLD Divorce and Property Settlement of Pre-marital Properties?

[sammy01]

What your ex is claiming about 50% of all assets regardless of when they were acquired is not correct. It is correct it should all be considered as part of the pie, but for various reasons some could be quaranteened. So the real problem is that an asset division requires both sides to get independent legal advice - solicitors...

That sucks - but hopefully the ex will come to an amicable agreement. Sadly, often solicitors will tell a client they should get more than half, say 65% BTW are there any kids from this relationship?

So let's get back to the 65% - the ex says hell yes. But she will spend $80 0000 to get the additional 15%....

Look if you're on good terms offer her something more than reasonable... Offer her 55% if she takes it great. If not, you'r both likely to spend more on solicitors and wind up with less... But sorting it quick and easy and giving a bit more to her is better than giving a lot more to a solicitor.

 

[Razzy]

Kids - yes... joint custody (we are both good parents and agree on that important part).

I've been going through my 15 years of bank, ato and rental managers records on the 2 rental properties... While they were sold 6 years into the relationship, they set us up to never have to get a large mortgage for our future homes...

I would think the fact they were positive income, and their sale delivered us a huge stepping stone to financial security through the marriage is a factor.

Also..

When one steps back and looks at it objectively.
She started the relationship with ~ $100,000 and myself with $500,000 of assets pre-marriage.

If we both walk away from the $1,200,000 post marriage pool with 50:50 while agreeing we both put an equal amount of effort into the marriage in our various forms of home/paid work.

She has managed to get a 600% increase, while I have had a 20% increase... both for the same amount of effort towards the marriage.

Seems somewhat unfair on the face of it... (not saying Law is always fair).

 

[Razzy]

What your ex is claiming about 50% of all assets regardless of when they were acquired is not correct. It is correct it should all be considered as part of the pie, but for various reasons some could be quaranteened. so the real problem is that an asset division requires both sides to get independent legal advice - solicitors... That suxs - but hopefully the ex will come to an amicable agreement. Sadly, often solicitors will tell a client they should get more than half, say 65% BTW are there any kids from this relationship?

So let's get back to the 65% - THE EX SAYS HELL YES. But she will spend $80 0000 to get the additional 15%.... Look if you're on good terms offer her something more than reasonable... offer her 55% if she takes it great. If not, you'r both likely to spend more on solicitors and wind up with less... But sorting it quick and easy and giving a bit more to her is better than giving a lot more to a solicitor.

I do have an additional question please.

The "fruits" of the initial contributions are significant... specifically the sale of the rental property which gave us enough money to avoid needing to have a home mortgage for most of the marriage in our martial home.

I was the only person who managed, financed, and refinanced the rental property in my name prior to the marriage, however the value of that property was fairly small just prior to the marriage and grew in the marriage period.

Are the fruits of the initial contribution considered something that can be claimed as more mine than hers (if she did nothing towards that growth because I managed it away from our family finances or my paid job) ? or are those fruits just considered fruits of the marriage ?

 

[Rod]

Initial contributions are a factor the court will evaluate.

How much emphasis is given depends on the weighting assigned by the judge in your case. This is discretionary, and can vary judge to judge.

 

[Razzy]

Initial contributions are a factor the court will evaluate.

How much emphasis is given depends on the weighting assigned by the judge in your case. This is discretionary, and can vary judge to judge.

Thanks Rod,

Yes I get that the Judge has wide discretion here.

But I guess my question remains... if the initial contributions (Net) consists of two Rental properties who's Net value is not high because they were only just positively geared.. then one side could argue there was little net value to start with, other than potential for future fruit down the track.

I should have mentioned the marriage was long (16 years), not short... which is a major factor.

However, if over the next 5 years they generate fruits of the initial contribution that are significant... are those fruit possibly considered fruits of the initial contribution, and thus, impact any adjustment towards the contributor (assuming that the other party did not have to manage/finance them at all) ? Or does the length of the marriage simply trump any fruits being created ?

Our family home increased very little over that period... My premarital rental properties increased quite a lot.

 

[Rod]

Note sure I fully understand your question.

Certainly fruits if the initial contribution can be taken into account. Proving it is the issue in many situations. Your situation may be easy in that you can prove the selling price of the property.

So what you do is claim a greater marital contribution and hope the judge agrees with your claim.

As you point out a long marriage works against you and the judge may say suck it up buttercup. However this is where the value of lawyer comes in as they can find good precedents to bolster your story (such as Williams & Williams [2007] FamCA 313).

And fyi, if you make a joint marital decision that reduces the value of the fruit, then you don't get to claim the hypothetical fruit value you would have had if the decision was not made.

 

[Razzy]

Note sure I fully understand your question.

Certainly fruits if the initial contribution can be taken into account. Proving it is the issue in many situations. Your situation may be easy in that you can prove the selling price of the property.

So what you do is claim a greater marital contribution and hope the judge agrees with your claim.

As you point out a long marriage works against you and the judge may say suck it up buttercup. However this is where the value of lawyer comes in as they can find good precedents to bolster your story (such as Williams & Williams [2007] FamCA 313).

And fyi, if you make a joint marital decision that reduces the value of the fruit, then you don't get to claim the hypothetical fruit value you would have had if the decision was not made.

Thanks again.. apologies if my question is messy ... I understand your comment on fruit of the joint decision... it's fair enough...


Basically.. I had 2 investment properties (IP) when we got together... but their initial values was quite low (< $100k) ... over the next 5 years sold them off and got a profit of ~ $350,000 (I paid tax on obviously).

We were married for 16 years... bought and sold a few family (Joint) homes which made a bit of profit, but a but less than the 2 investment properties made .

So.. I wonder if the proceeds of the 2 IP's are simply counted as fruits of the marriage because they were not worth very much at the start of the marriage...Or if the fact they grew quite a bit, and that I managed all of the finance and real estate stuff and kept them in my name means I can argue I should get a larger piece of that premarital fruit ?


The factor that I think is important is that having sold them meant we had almost no mortgage debt on our future family homes... an additional saving of more than $200,000 .. so we have both already benefited greatly from the fruits of those properties.

 

[Rod]

You argue the way that is of most benefit to you. So, claim $350K as your 'initial contribution', not the <$100K and see how well that goes. You would have to provide justification for your reasoning and case references supporting the expanded definition of 'initial contribution in your submission. Cases from the High Court are most valuable, followed by cases decided by the Full Family Court.

In case you are concerned about the validity of your argument, there is nothing preventing you from putting forward your argument. I can't see a judge saying you are being ridiculous in your claim and penalising you for it.

Being open and honest and providing ALL financials is what is important, closely followed by legal argument justifying your claims.

 

[Razzy]

You argue the way that is of most benefit to you. So, claim $350K as your 'initial contribution', not the <$100K and see how well that goes. You would have to provide justification for your reasoning and case references supporting the expanded definition of 'initial contribution in your submission. Cases from the High Court are most valuable, followed by cases decided by the Full Family Court.

In case you are concerned about the validity of your argument, there is nothing preventing you from putting forward your argument. I can't see a judge saying you are being ridiculous in your claim and penalising you for it.

Being open and honest and providing ALL financials is what is important, closely followed by legal argument justifying your claims.

Thanks again.

I did try to search for a similar case but didn't find much.
I don't suppose you know of any similar family court cases where 2 people married in their 30's separated with 2 children, equal custody, both with equally professional credentials (she can earn as much as me if she elects to work full time) that started out with significantly differing contributions and ended up with a non-50:50 division ?
I was hoping to argue that the fruits of the marriage (financial) over 16 years and 3 family home sales was not that much more than my initial contribution... thus it's impact was long lasting and we basically spent much of what we earned through the marriage.

My lawyer did not seem to think that I should highlight how much mortgage having those proceeds of sale of my properties saved as it counted the initial contribution twice... he also highlighted that the 16 year marriage took away a lot of that initial contribution.. I was still hoping to have some consideration... turns out the difference between my and her initial contributions (after proceeds of sale of my properties is taken into account) is more like $ 420,000 ... our final marriage pool is ~ $1,300,000 (including the family house that I would have to buy her out of).