QLD What to Do - Husband Wants Divorce but to Not Pay Child Support

[Mums the word]

Hi, my husband very recently left me for someone else.
He's living with her, but telling me he's going to get a divorce and wants me out of the house so he can sell it. We're both on the title for our property, but he telling me his lawyer says he has a right to the property.

Question - can he force me and the kids out to sell the property?

He also said he's not going to pay child support, and that I either give him the car or I won't get any money.
We have 3 children under 9 years old, and I'm not working as I care for the children, so I have little income that doesn't come from him.

Question - can he just make those kind of accusations about child support and how to I get child support for the children?

Thanks for your help. I know I may need a lawyer to help me, but this is all so new and I'm just trying to understand what's what.

 

[AllForHer]

Hi, sorry for what you must be going through. Separation is an extremely difficult process.

Can he force you and the kids out of the matrimonial home so that it can be sold? No.

However, he can file for a property settlement (after pre-action procedures like mediation take place) up to 12 months after the divorce has been finalised.

The court basically follows a four-step process for property settlements.

1. What's the total value of the shared asset pool, including all liabilities? This includes houses, cars, bank accounts, superannuation, etc.
2. What was the fiscal contribution of each party? This includes salaries, inheritance, compensation payouts, etc.
3. What was the non-fiscal contribution of each party? This includes home duties, such as housekeeping, raising the kids, etc.
4. Is the property settlement just and equitable? This is where the Court decides if a settlement is fair for both parties, taking into account their individual circumstances including the future earning capacity of each party, who will have primary care of the kids, etc.

This is not subject to a formula - every case is unique and the court considers each case individually. If you were my client, however, I would probably suggest aiming for a property division of about 65/35 in your favour, primarily because I assume you have been out of the workforce for nearly a decade, which means your future earning capacity is significantly lower than his. I can't predict what will happen with the house - a court can order it to be sold, but I don't think that happens often, especially if it means displacing a mother and three young kids. It's more likely that you could be ordered to buy him out for his share.

As for child support, your ex doesn't have a choice about that - he MUST fulfil his financial obligations to his children until they turn 18 years of age.

Child support is managed by the Child Support Agency. You can contact them and request a child support assessment, which will encompass his percentage of care (e.g. how many nights a week/fortnight/month/year/etc. he has the kids for) and how much his taxable income was in the last financial year.

Now, it is true that the higher the percentage of care the primary carer has, the more child support they receive from the non-primary carer, but as a disclaimer, please know that deliberately withholding the kids' from spending time with the other parent in pursuit of more child support is STRONGLY discouraged. It is rarely ever in the best interests of the kids and tends to go against the primary carer if it winds up in court.

With the Child Support Agency, I believe you have a choice to do a private collect agreement or have it paid through the Agency. Private collect means you and your ex formulate the terms for child support - it can be paid weekly, for example. Otherwise, if you choose to go through the Agency, I think it gets paid less frequently - monthly or half-yearly or some such. You would be best to contact them for clarification.

Anyway, I hope this has helped.

 

[CathL]

Agree with @AllForHer - and I think you'll also find these Family Law Court pages helpful:

• "Separation and Divorce".
• "Children's Matters".
• "Property and Money Matters".

 

[Mums the word]

Thank you very much for your help
That's very informative about family law - lots to get my head around!

 

[mintxx]

Step 3 is actually Section 75(2) Family Law Act factors, i.e. future needs.

 

[AllForHer]

My apologies, mintxx is right.