How do I keep the house? (Part One) – Divorce


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In this video, CGW Family Attorney Hannah Flanderka talks about the practical considerations that may be relevant to you if you reach an agreement with your ex about keeping the home.

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Hello. My name is Hannah Flanderka and I am an attorney on the family law team here at Cooper Grace Ward. In matters of property settlement, clients often ask me; “How do I keep the house?” ‘what do I need to do?’ Craig Turvey, Special Counsel on our team, has great video He looks at issues to consider if you and your ex-spouse have a disagreement about who gets the house, especially if court proceedings are in full swing.

fair and just

However, for today’s video, I wanted to look at some practical considerations that might be relevant to you if you come to a home-keeping agreement. As a starting point, the court will only issue property settlement orders if the court is satisfied that the proposed outcome is what is called “fair and equitable.” Depending on the circumstances of each case, in the context of your ability to retain a home that was jointly owned between you and your ex-spouse, a just and equitable outcome might require, for example, that you refinance the mortgage on that home in your sole name and possibly also pay your ex-spouse a cash settlement amount for the transfer.

Five step process

What you have to pay your spouse will really depend on assessing the first three steps of the property settlement process in court, a five-step process that involves first determining the amount of assets, assessing contributions, and then considering what adjustments may be necessary to meet future needs. Secondly, another aspect to look at is obviously what you can pay your spouse, and this will really depend on your working circumstances, for example, there may be some assets available in the property pool that you can use as a source of income. Money for a cash payment, or you can negotiate a smaller cash payout in exchange for, for example, transferring a share of your super to your spouse. The composition of the settlement your husband will get for the house and what it will be attractive to him really depends on the circumstances. So, for example, they may be willing to accept your pension exchange for a house on the grounds that they are approaching retirement age and will be able to access their pension in the next two years anyway. On the other hand, they may need a higher cash settlement because they will be without a home after the move, and they may seek to rely on the cash settlement until they can purchase a new property against themselves. The court will also consider whether the proposed settlement amount is sufficient to enable your ex-spouse to support themselves in the future as part of determining whether the proposed outcome of your keeping the home is just and equitable. Likewise, if you have children and you are not the primary caregiver for the children and therefore they will live with your spouse if you keep the house, the court will consider whether it is fair and equitable for you to keep them. Will the house, your ex-wife and your children find alternative accommodation? It is important to take these factors into consideration before agreeing on the outcome of the settlement so that you can be sure that whatever the outcome, the court is likely to accept it.

This video is the first in a two-part series that explores practical factors to consider when determining what might affect your home retention on your property settlement. Thank you very much for listening. My name is again Hannah Flanderka, and if you have any family law questions, please feel free to contact me or a member of our team at Cooper Grace Ward.

© Cooper Grace Ward Attorneys

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This post is for information only and is not legal advice. You should obtain advice specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you about as a result of this posting, please contact Cooper Grace Ward’s attorney.

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