Lawyers Australia - MBA Lawyers Gold Coast Queensland Australia

You may be surprised how much information can be obtained from them.
Every one of these – and others - may give or lead to very valuable information.
Remember that being upset may cloud your judgment or you may not know or appreciate the clear relevance of material right under your nose now.

Don't be concerned about all this because
i. we can tell you what you may need or what could be truly useful in your circumstances - and why. This will vary enormously. Sometimes a few enquiries will suggest some other material which could be useful
ii. we can suggest how to obtain certain information
iii. we can hold onto documents, information and material for you until you need them.

2.Tracking down assets
Commonly, one party claims that assets either
- have seriously and recently lost value – especially with businesses, or
- just don't exist
Any information you've already gathered will help here, but even if you have little to go on, there is very often a trail including
c. Public records
- ocompanies office
- otitles office
- obusiness names registers
- ogovernment registers of securities
d. Business records which are already available including trade debts, stock levels, credit, new invoicing patterns, loan accounts, lower bank deposits and other
e. Personal paperwork
f. Business associates
The trick is knowing where, when and how to look, recognising it when its in front of you and using it at the right time. Certainly, court processes are valuable:
- Discovery requires your spouse, or third parties, to produce all documents and records. Surprisingly, this can yield much information if you know the right clues
- Subpoenas can compel people or institutions to give evidence personally or produce documents or records of any kind such as credit card applications,bank manager's records,accountants records,company secretaries' records, the records of the trustees of trusts, bookies, and so on
But remember: it's the overall strategy for well directed use of these processes, proper enquiry, thorough analysis and eventual cross examination planning that counts.
There is a lot that can be done – if done properly.

3. Valuing and dividing the family business
The family business is part of the matrimonial assets to be divided – irrespective of who owns it or how it is held.

There are several ways a business can valued and they vary according to the circumstances. They may include:

- The value of the assets in the business such as equipment, stock, book debts, intellectual property rights and so on
- An analysis of sales of comparable businesses
- using a process of capitalizing maintainable earnings, applying appropriate rates and risk factors
Sometimes shares in a company running the business need to be valued, rather than the business itself. Tax consequences will need to be considered.
Circumstances differ:
- occasionally only part of the business is to be appraised and much will depend on whether if is a controlling or minority share and the amount of competition
- the value of the business may only be truly realized in the future after a current marketing plan or other activity is completed
- the business may be in a temporary slump or high
- it may depend entirely upon the personal goodwill of one party
Typically, it may be logical for one party to keep the business in exchange for money or other assets. But not always. In some cases, it may be more appropriate to require the business to be sold and the proceeds divided and this may well be the case if there is uncertainty about the value of the business or other asset, or if there are reasonable grounds for believing its true worth is not being disclosed.
And no, you don't need to have been involved in the business to be entitled to a share – it's a matrimonial asset like any other. How it is divided depends on the overall approach to property division
Assuming an agreement is reached: what is the most effective way of arranging a settlement to best fit in with the business? Can it be flexible? Can parties work the business together after a split? How can an agreement be made to take full advantage of market conditions over time?
Even when the deal is done, how it is structured can be just as important.

4. Getting a fighting fund when your partner holds the family purse
Preparing to divide matrimonial property can sometimes complex and time consuming especially where commercial assets or businesses are involved.

It may need:
- detailed and careful attention to locating and analysing financial information
- special assistance from accountants, valuers, barristers or other experts
- applications to the Family Court for such matters as
- control or reporting of trading activies
- disclosure of information
- preserving assets from being hidden, sold off or wasted
- payment of debts or expenses
- forcing a timely sale of an asset

All this can be expensive, but necessary. Your ex-partner may well have access to this kind of assistance, leaving you at a complete disadvantage.
If
- there are disposable assets or funds available and can be identified, and
- funds are reasonably needed to enable you to properly mount your case, and
- you have a reasonable chance of a division of assets, and
- you have no access to other funds
then in the right circumstances it is possible to ask the Family Court to make an order that you have access to certain matrimonial property to assist you to run your case. The court may order that you have access to funds in a family bank account or shares or that some asset be sold for the proceeds to be available to you.
It is a special application requiring evidence of need and lack of personal resources. We will let you know if your circumstances allow this to be done.

5. Understanding business structures and making full use of your rights in them
Family members often own assets - including businesses and commercial property - through companies, discretionary trusts, partnerships, joint ventures or other structures.

Usually, both parties to the relationship become involved as director of a company, substantial shareholder, trustee, partner and so on. While these positions carry significant responsibilities, they can be very useful on a breakdown of a relationship by
- giving valuable access to information and
- even influencing or controlling the asset
Never resign any position or surrender any right without knowing exactly what you are doing and why. No matter what the apparent inducement. Often partners will propose you resign your position, suggesting that it will remove you from exposure to debt, taxes or other responsibilities.
Think twice – and ask for advice first.

6. Personal counselling – looking after your most valuable asset is worth money.
Your ability to cope personally is most important asset.
Dealing with separation and all that goes with it is an intensely difficult time. Frankly, the hurt can be crippling. Sadly, this is also a time you need to be ready to make decisions and think reasonably clearly. You could be very surprised what a difference some personal and absolutely confidential counselling can make, especially if you feel reluctant to talk it over with someone. It won't make the problem go away but may well help replenish your mental strength and equip you to handle it a lot better.
We will recommend it to you because we know from years of experience that you will benefit financially from a clearer mind.

7. Child maintenance when the liable parent is asset rich and income poor
The cash economy hasn't disappeared with the GST. You may be painfully aware that your former partner has a lifestyle and assets inconsistent with no or low income, or an inability to contribute to the children's support. Be aware that it is possible to seek a variation of child support and for a lump sum to be paid to assist with child maintenance.

8. Making sure assets don't disappear before they're divided
If you have good reason to believe your partner may give away, gamble, sell, mortgage or otherwise dispose of any matrimonial property, an application can be made to the court urgently for an injunction to restrain it. Be sure, not sorry later. Sometimes, undertakings will avoid the need to go to court, thus saving time and money. But don't do nothing – you could be seen to you detriment to be consenting to it all.

9. Watch out for joint assets
Cheque accounts, lines of credit, trade exchange dollars, funds on deposit in many cases allow either party access to funds.
Remember to make different arrangements for joint signatories, freeze the fund or be sure your partner doesn't drain the lot before you have your fair share.
Also, if you own real estate as joint tenants with your former partner, when one of you dies, the other automatically gets that property. This can be changed with a simple severance of the arrangement that is lodged with the title office.

10. Wills and powers of attorney
Many couples quite sensibly give a power of attorney to each other during their relationship. It may be just as sensible to revoke it when the relationship ends.
Similarly, your will is almost certainly going to need changing and any testamentary trusts or other estate planning arrangements should be checked.

11. Debt – guarantees, creditors, tax, leases, directorships
Beware debts and liabilities, particularly ones that have come into existence after the relationship has begun to turn. The courts have the power to set aside transactions intended to remove or hide assets.
It may also be necessary to examine the circumstances in which have signed guarantees, leases or incurred liabilities not fully understanding the nature of the documents.
Remember that you may have on-going liabilities as director of companies, the joint tenant of property, taxation liability and creditors – all of which will need to be brought into account on a settlement and watched carefully before a settlement is made to make sure your position is not put at any further risk. Divorcing your partner is hard – divorcing the debt can be much harder.

12. How to resolve disputes
A quick and fair settlement is the ideal. Mediation may be worthwhile, as may settlement conferences with your partner and solicitor. But if progress is not made quickly, the most effective approach is to seek the timely assistance of the appropriate court – usually the Family Court. There is no point in allowing negotiations to drag out causing undue stress, tension and expense.
You shouldn't feel daunted or threatened by this. The Family Court has excellent processes designed to reach a negotiated settlement. Delay in using those processes may just be wasteful and costly.

13. Why do I have to disclose everything?
It is compulsory in order to get an enforceable agreement. The Family Law Act, and the laws relating to de facto couples, both require full disclosure of all assets by the parties seeking to divide property.
This includes all assets in which either or both have any interest at all. If full disclosure isn't made, the agreement can be set aside. Imagine having to go back all over it again, years after you thought it was behind you.
It's always best to disclose the assets and negotiate.

14. When to rebuild after a split – what assets are divided?
A common misconception is that the only assets divided by a court are those in existence at the date of separation. In fact, those assets divided are those in existence at the time a court is making a decision to divide matrimonial property. This may well influence how you acquire, operate or own assets after separation or even start up a new business.

15. Making the split tax effective
There are major tax and stamp duty concessions and roll-over relief given to people dividing assets on a marriage break-up.
The advantages of pre-capital gains tax assets should not be lost
This should be the time to remove unwanted companies and trusts.
Tax deductions may be available on loans structured to buy out assets.
Avoid loan account traps and deemed dividend and be careful of re-arranging superannuation and trust entitlements.
There are many tax traps for the unwary and opportunities to make the best use of concessions available and structuring the deal to ensure security for money or obligations due to you and taking advantage of timely market conditions.

16. What if you're not married to your partner?
New laws have brought Queensland into line with the rest of the country to now cover de facto relationships. These laws are very similar to the Family Law Act and adopt similar principles.
One major advantage at the moment is that de facto couples can make binding co-habitation agreements at the commencement of their relationship and they have a simple method of recording settlements. We strongly recommend co-habitation agreements for de facto couples. They can avoid many problems later.

17. Pre–marriage agreements
They can be taken into account in the Family Court between married couples and while they may be of limited use for young couples with young children, they are very sensible for mature couples with adult children or for childless couples in the early stages of their marriage. The federal government is introducing laws to give greater recognition to these agreements generally, but they can certainly be of use in some cases.

18. Why use lawyers with business and commercial experience - in family law?
Often only one party to the marriage fully understands the business assets.
If your case is money related – whether business, property, or other commercial rights or interests – or involves any kind commerce, its an advantage to have on your side a firm that knows the
- language
- records
- patterns
- structures
- and the law
of business and commerce - as well as family law - and understands the human needs people involved in family law problems.

19. My children are coming into my business with me?
Can I plan to ensure the business is not sold up if
one of them falls out with his or her partner?
Yes, there's a number of steps you should seriously think about with introducing them into the business and arrangements if a falling out occurs. Shareholder and partnership agreements, trusts, pre-nuptual agreements, co-habitation agreements and other approaches are all relevant

20. If I'd like to talk with someone about my circumstances, who should I call initially?
Tell our receptionist that you'd like to speak with Barry Morwood. Barry has years of extensive experience in both business law and family law.
If he's not in the office, if he's with other of our clients or if he's otherwise not available you can leave a message for him to call you or arrange with his secretary for a time he's likely to be available to take your call.

Please remember: we understand your need for complete confidence at all times.