Do I get more of the property settlement if I get the kids?

As family lawyers, one question we are often asked by a newly separated client is “If I get the kids, do I get more property in our settlement?” The simple answer is that in calculating each party’s entitlement in a property settlement, the care of the children of the relationship is only one of the factors taken into consideration. As to the children or child’s living arrangements after a divorce, any such agreement should always be based on what is in the children’s best interests.

Whether you were married or in a de facto relationship, after you separate it is important that you contact a lawyer. They will be able to advise you on your likely entitlements in a property settlement. They will also explain what parenting arrangements you should make before you reach any final agreement with your ex-spouse. Contact our Cairns Family Law team and arrange an obligation-free appointment as soon as possible.

If you are separated, it is important to remember that you do not need to be divorced to arrange a property settlement. There are, however, time limits on finalising a property settlement. These are 12 months from the date of your divorce or two years from the date you separate, if you are in a de facto relationship.

We will assist you wherever possible with negotiating a final settlement regarding your children and your property. If an agreement is reached out of Court we can prepare an Application for Consent Orders to have your agreement approved by the Federal Circuit and Family Court of Australia.  In rare cases where negotiation and mediation fail, our family lawyers will assist you with the commencement of court proceedings for parenting orders and / or property settlement.

Regardless of whether you achieve court orders by way of negotiation or after litigation, the starting point in any property matter is to firstly determine any possible alteration of the parties’ interests in property. If the answer to this question is yes, then there is usually an exchange of financial documents. It is each party’s duty to provide the other with disclosure of all relevant financial documents. 

The parties may then obtain valuations of each major asset such as the home and any business interest or investment. At this stage, you can collate a balance sheet which sets out the size of the property pool. Your lawyer will then endeavour to negotiate a settlement on your behalf after obtaining detailed instructions from you about your financial contributions. This will include your non-financial contributions and your contributions as a homemaker and parent. Although it is usual for the primary parent during the relationship to initially remain the primary parent of the children after separation, the legislation and the courts do not always maintain the status quo.

The arrangements for the children will be determined on a case-by-case basis and take into account various factors. These may include, but are not limited to, the age of the children and the children’s wishes (where appropriate). They may also consider the opportunities each party has taken to spend time and communicate with the children, to be involved in the children’s lives and to support them.

After weighing up each party’s contributions to the relationship, the next consideration is each party’s future needs. This entails a review of each party’s age, health status, future income, current superannuation entitlements, any child support paid, and obligations to support any third party. In addition to this, a consideration of the percentage of time the children will spend with each parent is also taken into account.

We encourage you to contact our family lawyers to obtain expert advice about the care arrangements for your children and your property settlement entitlements.  

Child Support and Property Settlements

Whilst child support payments are considered within a property settlement, they are separate legal matters. Property settlements and parenting orders are handled by the Federal Circuit and Family Court of Australia, whilst ongoing financial support for a child or children is overseen by the Services Australia (formerly Child Support Agency).

Separating parents have two options if they wish to formalise an agreement that is different to a child support assessment:

• Limited Child Support Agreements
• Binding Child Support Agreements

Our experienced family lawyers will be able to advise you on which is right for you and your family.