QLD Money Held in Trust before Property Settlement - What to Do?

[Bobby1]

Our family home has been sold and because we cannot agree how the money from the sale of the house is to be split, it is being held in trust.

My husband still refuses to see a solicitor but wants money released to pay of some debt he has incurred. This is before a property settlement and financial agreement has been done.

Is this possible and how will this affect me if I agree to help him out? Will I be liable for capital gains tax or anything?

 

[andre nikatina]

I am currently in the same situation, so I can shed some light on it from the knowledge I have gained.

So it's basically up to the judge to make the decision. To be successful, your ex will have to demonstrate that if the judge does allow him to withdraw the funds he wants, that it will not affect your portion of the final distribution.

So for example, if say there is $100,000 frozen and he is only asking for say $10,000 - $20,000 and having good reasons for it, the judge would be much each easier inclined to release the funds because he would not see a negative impact of what would theoretically be your share, even if it was to be 70-30.

But if he was to ask for say $50,000 the judge would probably see there is a huge risk that what you might be entitled to at the end is ultimately not available. So if he does allocate any funds to your ex, it just gets deducted at the end from what he was entitled to. So it's essentially like an advance.

Hope that cleared the issue up.

 

[Bobby1]

That's great thanks. However it hasn't even got that far ... We were just going to do a financial agreement. If we decide to go down the court route, how long does it take?

We were going to instruct the solicitor to release the money, thus all we have to fight over is about 20,000 and superannuation split.

I'm just not sure which way to go

 

[sammy01]

Ok, so this is not nice opinion. You are part of a stupid game called divorce. It ain't a nice game. But it is a game of strategy. He wants the money, you want everything settled before you agree to release the money. So refuse to release the money until you have legally binding court orders around all the division of property / assets /superannuation.

Based on the money you're talking about, I think court may be a waste of time. As far as capital gains, don't know, speak to an accountant.

If there isn't much in superannuation between you and really the only substantial asset is the $20 000 and if you agree about who gets what amount, then really why not get it done and forget about any other division of assets because the grief involved could outweigh the financial cost and the emotional cost?

 

[andre nikatina]

Well I can tell you my experience. I am arguing over about 1 million in assets so it's worth it for me
.
So the two issues for you will be,
1. How much the lawyer will charge and whether its more than what you will get if you're only diving the kind of amounts your describing.
2. Time - its nearly a 1 year wait from our first day which was a couple of months ago to the next day. If it's only a financial matter and no urgency with kids, violence etc. then it takes a very long time.

 

[Bobby1]

Thanks .. Total money held in trust is 200,000 and two cars.

I've asked for $10,000 and he can keep both cars. We have a debt of $10,000 so it sort of equals things out yet I'm still met with deaf ears. He has far more super than I as the homemaker but I just know that's going kick up a stink if I ask to share it.

 

[euro666]

Super is shared. He knows this already. Don't worry about kicking up a stink. You can just copy/paste the directions "when there is a divorce and how to split"- text and email this to him. Once you are in a divorce, superannuation is part of the asset base. make sure you add it in.

 

[Bobby1]

Well I got my solicitor to draw up a Financial agreement. Husband agreed to pay half the fees. He's now refused to sign it and wants to start again with a consent order.

Now my solicitor is now asking for full payment as I put him on hold because I cannot afford the fees. My solicitor has ignored every comment with my instructions to fight for pension... Completely ignores my requests. He hasn't fought for any form of monies for me. Not one bean.

Think I'm just going to call it quits. Feels like no one is fighting my corner.

 

[euro666]

Go and see your solicitor and make an appointment. Make a plan of attack. If you do not like the progress of this solicitor, find someone that you can work with and you trust. First visits are normally free anyway and make sure you have a plan. Super is part of the assets, make sure you include this. Take your time also, don't push things too fast as this can only cause frustration, but keep fighting.