It is that time of year again. A time for reflection, resolutions and new beginnings. For a number, once the Christmas decorations and camping gear are packed away, they must face their marriage or significant relationship coming to an end. For lawyers specialising in family law, the phone rings hot in January as couples separate. Separating may be a decision that has been some time in the making for you but which you have delayed “to get through Christmas”. Possibly spending so much time together over the holidays has shone light on the reality that your relationship has run its course. Perhaps the credit card bills have come in and financial stress has become the final straw for your relationship to bear. Maybe you have been separated a while but are in need of a change to the post separation dynamic between you and your ex.
Whatever the circumstances behind your separation, whether it has just happened or you’ve been separated a while now, here’s four resolutions that you might like to consider:
Check: Is it Really Over? If you are newly separated or considering separating, take pause and check whether the relationship is really over. Separating is hard to come back from and has significant financial and personal implications for you, your spouse, any children you may have and your wider whanau. Being proactive and considered about the decision is important. Now is not the time for being impulsive. Spending some time with a lawyer to get an overview of what lies ahead if you separate allows you to make a fully informed decision. Counselling, individual and joint, may assist you to work through the issues that trouble your relationship and avoid separation. If it cannot be avoided, counselling may help you to be on the same page about how you both want to make this significant change to your family.
Doing it Differently: Most of us have seen and heard the horror stories. Separated friends or family members who have spent years and tens of thousands of dollars litigating issues about their children and property. Many couples aim for a simple, amicable separation only to end up in ever increasing conflict which they feel unable to bring themselves back from. Gwenyth Paltrow and Chris Martin’s “conscious uncoupling”? You could be forgiven for having cynically thought this is impossible. But, what if it weren’t? What if transitioning you and your family through a separation could be undertaken in a way that aims to focus on your important concerns and your children while avoiding rising acrimony?
Lawyers trained in Collaborative Practice work with their clients to achieve dignified, equitable outcomes that are personalised to their unique needs. Whether you are on the cusp of separating or are well along the path, it isn’t too late to look up a Collaborative professional and explore whether this process may be right for you and your family.
Save Money – Use the Right Professionals for the Right Stuff: One of the challenging issues around separations and legal issues is facing your altered financial position. So, it really doesn’t make sense spending more than you need to on legal costs, does it?
One way you can protect yourself from excessive legal costs is to ensure you are using the right professionals to deal with the right issues. This may mean having multiple professionals on board but ultimately, having each do what their skill base best equips them to do should mean reduced costs for you overall. Many professionals have lower charges than lawyers.
A common example is counselling. Clients often will come to their lawyer bearing the heavy emotion that accompanies separation. They share this with their lawyer (often at length). The sheer weight of their emotional state can mean they are unable to properly take on board the information the lawyer provides, let alone carry out any fruitful decision making about the legal issues. Do this several times and you end up with a large bill with little to show for it in a legal sense.
While most lawyers will be empathetic to your situation and may even be very good listeners, their skill base is in the law not mental health. Better to spend time and (usually less) money working with a counsellor or psychologist to help you work through the emotional challenges you are facing. These professionals usually have lower charges and you’ll have the right professional to support you. When you see your lawyer, you’ll have better focus on the legal issues and ultimately will likely spend less. Got finance/budgeting/business issues? Issues with assisting your child through a separation? Same deal!
Take the Higher Road: Struggling to move out of the conflict zone with an ex who seems to know just how to rile you up? Tired of constantly having to battle together over most issues? For the sake of your emotional wellbeing and the wellbeing of your children, its time to change that. While we’ve all heard the saying “It takes two to tango” and it is easy to believe change can’t happen unless the other person changes, it also only takes one to stop the tango. Perhaps what is required is a change in the method or timing of your communications. If you still have legal issues between you, deploying a process like Collaborative Practice or Mediation will usually not inflame the conflict between you in the same way litigation does. It may be as simple as resolving to always take the higher road when faced with a challenging situation with your ex. For some, this may mean having to get the expertise of a conflict or divorce coach, counsellor or psychologist to give you the tools to respond differently when your ex presses those buttons.
Do Something You Couldn’t do Before: There is a lot of compromise in marriage but guess what? If you are separated you can choose to do things you couldn’t before your separation. For one lady I knew, this meant getting a dog which was something she couldn’t do during her marriage as her husband was allergic to dogs. For another client, it was travel while another chose to throw lavish dinner parties. I have heard another client speak positively about now simply being able to watch what she wants on the telly. Whatever it is for you, these small choices around shaping and constructing your post separation life can be liberating. Even if the decision to separate was not yours and you are struggling with it, making choices to do things you’ve had to compromise on previously can help you to create a silver lining and see the future more positively.
The feeling of renewal and fresh starts at the beginning of the year gives us a valuable opportunity to assess whether life is how we want it to be and to take action. Resolutions like those above will have long term implications for the wellbeing and future relationships for you and your children so its well worth putting some careful thought into them. Most of all, be gentle with yourself and those around you. We’re all just trying to do our best!
Thinking of separating? Separated and wanting to resolve your legal issues in a respectful way out of Court? Arrange a consult in person or by Skype/phone with Family Law Results by calling 0064 9 297 2010.
With only four weeks until the holiday season, do you still not have a confirmed agreement about how the children will split the holidays between you and your ex? Have you tried discussing it together, even recruiting family or lawyers to try to help broker an agreement but to no avail? Given my previous comments about how unlikely it is to be able to get Court time urgently before Christmas, you may be feeling slightly panicked about how and whether this issue is going to be resolved.
Never fear – there are other options for resolving parenting issues as quickly as possible before the holidays. I’ve previously blogged about Mediation and Collaborative Practice as alternatives to Court. When there are issues to be resolved urgently, these processes can be accessed and worked through quicker and more cost effectively than court proceedings can. Both processes have a focus on the future and on your children. These processes come with the added bonus that each are focussed on achieving resolution without inflaming relations between you and your ex. How perfect is that for the holiday season?!
To undertake Collaborative Practice, you will each need to engage a lawyer who is trained in the process. You can find collaboratively trained lawyers here. Engaging a collaborative lawyer and arranging a collaborative meeting can still likely occur before the holidays if you get things underway now. Collaborative Practice is focused on finding solutions that meet the future needs of you, your ex and your children in a respectful, dignified way. Your lawyers are there to advise you and support you through the process. Forget what you’ve seen on television courtroom dramas – collaborative lawyers are trained to facilitate the process in a way that is mindful of the future co-parenting relationship you will need to share and which allows you to find more creative solutions than the Court may well be able to impose.
A mediator may well be able to meet with you and your ex relatively quickly if you initiate mediation now. The mediator will guide you both through a discussion about the issues, help you consider the options and put your children’s needs front and centre. The mediator cannot decide what will happen for you and your children – that rests with you. I like to think of my role of mediator as being like the GPS in your car. I can guide you to a destination but ultimately you are in the driver’s seat and choose where to go and how to get there! In New Zealand, mediation can be accessed in one of the following ways:
- contacting a mediator privately. You can find mediators through the Family Law Section of the New Zealand Law Society.
- Contacting the Family Dispute Resolution Centre in Auckland.
- Your local FDR supplier, particularly if you believe you qualify for government funded mediation. FairWay and FamilyWorks are good starting points.
The holiday season is said to be the season of peace and goodwill. I urge you to choose to use a resolution process that encourages both those things – and avoids Court delays!
Want to look further into Collaborative Practice or Mediation? The Family Lawyer, Selina Trigg, is an experienced mediator and Collaborative Lawyer so give her a call on (09) 297 2010 to discuss what option may be appropriate for your situation.
Well, there it is – less than 30 days until Christmas! Are you sorted? You may be the type to have your Christmas gifts bought and wrapped, the menu planned and the relatives organised 6 months ago. You may have more of a “leave it to the last minute”, shop on Christmas Eve and forget to defrost the turkey approach. Whatever the case is, there is one thing that shouldn’t be left a minute longer – sorting out the parenting arrangements for your children at Christmas.
Some separated parents may have a standing arrangement, either in an order, parenting plan or through simply doing the same thing each year. If this is you, then it is likely to be a simple matter of politely confirming this arrangement with your ex.
For those who don’t have such an arrangement in place or wish to try to negotiate something different, you need to start resolving this NOW. Forget about Christmas shopping or getting that ham glaze recipe from your aunt. This takes priority. If you leave it any longer, you will likely be unable to find anyone who can assist you to resolve the issue at short notice.
So, what should you do? First things first, before raising the issue think about what is important for you and what you think may be important for the children and their other parent. Then consider a range of options that you can propose to the other parent which may satisfy those important concerns. There are a range of issues that you will likely have to consider, including:
- What are the children’s views?
- Do both parents celebrate Christmas? In some families, the holiday is more significant to one parent than the other.
- How far away will you be from each other on Christmas Day? This will impact on how easily arrangements can be made for your children to spend time with each parent.
- What arrangements with other family and people important to your children are there?
- What happened last year? If the children missed out on time with one parent last Christmas, perhaps this year they should get time with that parent.
- What family traditions do each parent’s families have around Christmas?
- Are their family members or loved ones for whom this may be their last Christmas?
- What ages and stages are your children at? For very young children, shorter blocks of contact may be more appropriate.
If you cannot resolve the issue with your ex then you will need to consider getting outside assistance quickly. This may be in the form of a trusted family member or friend who can facilitate the negotiations between you. Alternatively, you may need to approach a lawyer or seek Family Dispute Resolution through one of the FDR providers in your area. However, doing this sooner rather than later, will help to ensure you can find someone to assist you.
Once you have your arrangements in place, the following may help you survive the holiday season parenting arrangements:
- Try to involve your children in the planning so that they have a say in what happens both in terms of what time they spend with each parent but also what they do during their time with you. However, don’t put the emotional burden of “deciding” on their shoulders.
- Adopt a positive and encouraging attitude with your children towards them spending time with your ex and their family.
- Communicate with your ex about important end of year celebrations and activities, such as end of year assemblies, Christmas concerts and parties and about the arrangements for attending these. This should be a time when your children get to enjoy having both their parents and loved ones attend such events without feeling stressed about how the adults are going to behave!
- If you aren’t having the children on Christmas Day, this can be difficult. Try to ensure you make lots of plans to have a full day with other loved ones and friends or even volunteering at Mission. This way you will have less time to dwell on the fact you are without your children while also giving you the opportunity to create new Christmas traditions and build upon other relationships.
- If you are having the children on Christmas Day, ensure they get contact with their other parent on the day by phone or Facetime/Skype etc. Arranging in advance for the children to have time with the other parent as close to Christmas Day as possible also means the children know they will be having a Christmas celebration with that parent.
- Christmas is meant to be a magical time for children so take steps to ensure it is that way for your children. Parents arguing or sniping about each other or their families, spending hours in a car traipsing across the countryside between families (only to stop briefly before doing it again) and feeling pressured to ‘favour ’a parent is not the stuff magical Christmas memories are made of.
- Carefully consider Santa and gift giving. Where possible, consult with your ex about where Santa will be delivering to (if he visits your children), the appropriateness of certain presents (should your 7 year old really be getting an iPhone?) sharing the cost of presents or setting a limit on how much you each spend. Also, think about what message it sends to your children and their other parent if you encourage and support your children to buy or make that parent a gift.
Above all, a reasonable approach will go a long way towards making life easier at Christmas for yourself and your children. This isn’t always easy to achieve amid the emotion of a separation. However, the build up to Christmas can be stressful enough of itself so take a deep breath and be prepared to circumvent a lot of stress by being reasonable and compromising. Sometimes goodwill and a spirit of compromise and inclusiveness is what is required. ‘Tis the season after all.
Having difficulty agreeing on holiday parenting arrangements? Give us a call at Family Law Results on 09 297 2010 or at lawyers@familylawresults.co.nz (but don’t leave it too late!).
Rebecca had always been frugal. She and her husband, Brian, had scrimped and saved hard for everything they had. Where possible, they preferred to DIY as much as possible. This included avoiding legal costs.
Rebecca had been referred to me because she and Brian had separated and things were a bit of a mess.
When they met, Rebecca owned a home which she had bought her previous husband out of. She loved this home and although the mortgage payments were a struggle, she felt it was worth it to provide a family home for her young children. When she met Brian, he didn’t have any personal assets. He had a family trust which owned some investments which largely ticked along. The trust was for Brian’s children’s benefit. Brian moved into Rebecca’s home and they worked hard to pay down the mortgage.
I asked Rebecca whether she and Brian had completed a contracting out agreement to set out how their property was to be divided if they separated. Rebecca explained to me that she had trusted Brian completely and besides, she didn’t want to spend money on lawyers for something she was sure (at the time) would never happen.
Brian was now claiming half the home.
One of the reasons Rebecca and Brian had separated was due to the stress of financial issues within the Pomegranate business they established during their marriage. It had been Brian’s idea and Rebecca felt she really got dragged into it. Having said that, she enjoyed working in the business together with Brian. She felt they were a good team, trying to build this investment for their future. Things hadn’t been going well with the business recently, largely due to a particularly cold winter coupled with Brian being ill and unable to carry out some of the heavier labour required.
Brian borrowed $60,000 to prop the business up. He needed Rebecca to sign documents for the loan. She wasn’t happy about this and certainly didn’t want any borrowing that may threaten the family home. Brian assured her this wouldn’t happen and that the home was safe. Rebecca thought perhaps she should see a lawyer but she explained to me that she didn’t want to spend money on lawyer’s fees especially when money was already tight. Besides, she trusted Brian and he went as far as to write down on a piece of paper that should anything happen in their relationship, he alone would take responsibility for the loan.
Brian was now claiming that Rebecca should be liable for half the loan as it related to their family business. To make matters worse, he has told Rebecca there is a caveat against the home to secure the loan.
Shortly after the loan, Rebecca and Brian separated. Rebecca didn’t want to spend money on legal costs so she set about negotiating their property division directly with Brian. Rebecca desperately wanted to keep the family home. She got a valuation and arranged finance so she could pay Brian the price he had said he would consider. Brian then told her he had changed his mind. They kept trying to negotiate together and now some months had passed. The property market had increased considerably and the house value increased by another $80,000. The higher value of the home meant Rebecca could no longer afford to buy Brian out of the home.
At that point, she decided she needs the assistance of a lawyer to help her resolve things.
After meeting with Rebecca, I pondered the “cost” of her having “saved” on legal fees in the past. Ideally, Rebecca would previously have had a lawyer:
- assist her to complete a contracting out agreement between her and Brian when they began living together. This could have preserved the home (or at least Rebecca’s initial interest in it) as her separate property. Instead, the law treats it as the family home which is to be equally divided. This has cost her $500,000.
- advise her about the loan being incurred and how to create a legally enforceable agreement so Brian takes sole responsibility for paying the loan back. This has cost her $30,000.00.
- assist her in early negotiations after separation and properly documenting the initial agreement for Rebecca to buy the home. The $80,000 increase in the house price has cost her the opportunity to keep her beloved home for her and her kids – for the sake of saving a few thousand in legal costs.
Her “savings” on legal fees over the years of probably less than $10,000, has cost Rebecca $530,000 in the divorce and the ability to keeping her beloved home.
I get it. Who wants to spend money on a lawyer, especially if money is tight. Legal costs are often a grudge purchase in the same way as a trip to the dentist is. However, just as spending a little on getting a filling now will save you pain and thousands on a later root canal, spending a little on good legal advice up front can save you a considerable sum later.
For help finding a cost effective solution to your family law issue, give us a call at Family Law Results on 09 297 2010 or email us at lawyers@familylawresults.co.nz.
Ngaire was one unhappy woman. Her friend had warned her that she was about to lose half her carefully squirelled away Kiwisaver and superannuation funds to her husband, Greg. Greg and Ngaire had recently separated, a decision largely driven by Ngaire because she couldn’t carry on living with Greg’s “irresponsibility” any longer.
Ngaire had married Greg 5 years ago after a very whirlwind relationship. It was all quite a rush for Ngaire at the time. She was 45 years old when they met. Long before that she had watched friends marry and have families and had come to a level of acceptance that perhaps this wasn’t going to happen for her. So, meeting Greg was a pleasant and exciting surprise to Ngaire.
Ngaire, being keenly aware of her single status and need to financially provide for herself, was quite the planner and relatively conservative in her spending habits. Greg, on the other hand, was spontaneous and adventurous. Ngaire found his “it’ll be right, live for the day” approach to life intoxicating and exciting at first but, as time wore on, it began to wear thin and became a source of conflict for them. She now regards their early relationship as “a period of temporary insanity” for her.
Ngaire was a great saver. She had a solid sum already saved in her superannuation scheme when she met Greg. As soon as Kiwisaver was introduced, she joined and made the maximum contributions she could so there was a nice amount there too. On the other hand, Greg had little savings and no superannuation or Kiwisaver when they met. After they married, Ngaire managed to get Greg on board with Kiwisaver but he only ever made the minimum contribution from his wages as he felt it important to have money to spend on life’s pleasures as well.
Ultimately, Ngaire found it just too hard “living on the edge” from one adventure to another with Greg and she moved from their home. She thought they had come to relatively amicable agreements over a coffee together about dividing the home, their bank accounts and the chattels and that they were sorted. However, at a BBQ the other night, her friend announced that superannuation and Kiwisaver were also relationship property to be divided. This sent Ngaire scurrying to see me in a panic. All Ngaire could see was her years of careful spending and saving for her retirement (while Greg was “off having fun, being irresponsible”) being all for nothing if Greg could walk off with half of it. She was particularly appalled at the prospect of him “frittering it all away” on travel and mountain biking gear.
I first checked whether Ngaire, being the financially risk averse person she is, had entered into a contracting out (pre nup) agreement with Greg. This may have preserved her retirement savings as her own property should they separate. No such luck – so giddy with the romance of it all, Ngaire really didn’t feel one was needed and besides, getting Greg to a lawyer would have been almost impossible.
So, what was to happen to Ngaire’s superannuation and the Kiwisaver she and Greg had?
Ngaire’s friend was partly right.
Relationship property law treats superannuation and Kiwisaver funds as relationship property that to be divided equally between both spouses. Ngaire was beside herself – she had significantly more in her Kiwisaver and superannuation than Greg did because of the contributions she had made before they met!
However, all was not lost. The law recognises that often superannuation savings may have been in place before the relationship. In such cases, the relationship property amount that is to be divided is limited to the portion of the superannuation’s value that is attributable to the relationship. With an actuary’s help we were able to calculate what portion was attributable to Ngaire’s pre-marriage savings and what portion related to the marriage. It was still a bitter pill for Ngaire to swallow that her higher dedication to saving for retirement during the marriage was going to benefit Greg. After some discussion, she recognised that during the marriage she had benefitted from his income that was spent on their adventures and travel and ultimately she was relieved that her pre marriage retirement savings were to remain hers.
If, like Ngaire, you have a relationship property issue you need help to resolve then give Family Law Results a call on (09) 297 2010.
The family who had just appeared in Court were all in tears as we walked out. There were hugs and expressions of gratitude all round and a huge sense of relief. A monumental event had just occurred for this family. My clients had successfully adopted a child born to other family members. The reasons why this arose are long and unnecessary to dwell on here. Suffice to say, the child’s parents were fully supportive of the adoption and a long family tradition and culture of informal and formal adoptions within the family preceded the child.
When I am approached to assist with an adoption of a child by members of its family, I begin by cautioning them that the Family Court may not grant an adoption. This is due to a concern that an adoption will legally distort the child’s relationships. For example, take an adoption by a grandmother of her daughter’s daughter (her granddaughter). After the adoption, in the eyes of the law, the grandmother is now the child’s mother, the child’s mother is now her sister, the child’s siblings are now her nieces and nephews… and so it goes on.
To avoid this distortion, parenting and guardianship orders are often used instead of an adoption. Such orders don’t legally change the family relationships but give the family members who are caring for the child the rights of a guardian to make decisions about the child’s welfare and rights to the child’s day to day care. The child’s biological parents retain their guardianship and legal rights to seek contact with the child.
But what, as for my clients, the security and certainty of adoption is really what the family all seek? There is no absolute rule against family members adopting a child of their family. The concern about the distortion of family relationships is just one factor to be taken into account by the Court. The Court must decide if the adoption will promote the child’s welfare and in doing so, must balance a range of factors.
Increasingly, one of the factors that may be relevant is the culture of the child and parties. This was a particularly important consideration in the adoption I began this blog referring to. What role, culturally, do wider family members have in the raising of a child? What is the relevant cultural perspective of adoption?
Over 20 years ago, the High Court indicated that it could not see why full regard shouldn’t be had to the cultural attitude to adoption of the family concerned. Time has marched on since then and with it, our society is increasingly multicultural. In step with this, the Court has recognised in several cases (including the case of my clients above) that adoption cannot be viewed through a European or Pakeha lens alone. An adoption that may be considered inappropriate in a European setting may well promote the welfare of a child in a Maori, Pasifika or Asian family.
The Adoption Act is widely regarded as outmoded and overtaken by changes in society’s values and make-up. This recognition of other cultural perspectives is an example of how the Courts will attempt to make the Act work as best as possible in response to those changes.
Got a query about adoption? Give us a call at Family Law Results on ph 0064 9 297 2010 or email us at lawyers@familylawresults.co.nz.
Steven called me in a very stressed state. He had split up with his girlfriend, Angela, a few months ago. Angela is pregnant with their child – a girl due in 3 months. Steven is looking forward to becoming a father even though he and Angela are no longer together as a couple. Steven has just learned that Angela has contacted Child, Youth and Family about having their baby placed for adoption after birth. Steven told me that his biggest fear was that Angela would have his daughter adopted without him having any say in the matter. Can she do this?
Before an adoption can occur, the consent of the child’s father is required if he is (or was) married to the child’s mother or if he is (or was) a guardian of the child. If the father is not married to the child’s mother or isn’t a guardian of the child, the Family Court has a discretion to require a father’s consent to the adoption if it considers it “expedient” to do so. The Family Court will usually find it is expedient to obtain a father’s consent to adoption if the father has been involved in the support or upbringing of the child or if he has taken steps to apply for guardianship or parenting orders for the child.
Steven and Angela weren’t married but it is likely he will be a guardian of their child. As a guardian, his consent to any adoption would be required. A father will be a guardian of a child if he is registered on that child’s birth certificate as the child’s father. There is a legal obligation on both parents to register their child’s birth and have their details recorded on the birth certificate. The exceptions to this are very limited. A father can also become a guardian by being appointed as such by the Family Court.
Steven was concerned about how the Court will know of his role as the child’s father. Child, Youth and Family (CYF) is not legally obliged to identify or make contact with the birth father. That doesn’t prevent Steven from initiating contact with CYF about the proposed adoption although he may be frustrated by CYF having a duty of confidentiality to the child’s mother. Furthermore, an adoption cannot proceed without the birth certificate having been issued and provided to the Court. Furthermore, a child’s mother needs to provide evidence to the Court about who the child’s father is and CYF is encouraged to include information about the father in its report to the Court.
As Steven could see, the birth certificate registration process shortly after the birth of his daughter was important in establishing him as a guardian with the legal rights and responsibilities that come with that role. If you are a father who is concerned about your child being adopted or about your legal rights and responsibilities as a father then the best course of action is to seek advice sooner, rather than later.
If you have an adoption issue or question about your rights as a parent, then call Family Law Results on (0064) (9) 297 2010 or send us an email to lawyers@familylawresults.co.nz to discuss how we can help.
An enquiry came into Family Law Results’ website that was similar in theme to other enquiries we regularly receive about child support:
“I need financial assistance for my children from their father, my ex husband. I don’t know if it is worth applying now for child support because he refuses to pay. He’s self employed and I am scared he will just hide his considerable income”.
What do you do in the situation where you aren’t receiving financial support for your children from their other parent? Perhaps the other parent is on a low income or, like this enquirer, you fear he or she will “hide” the true extent of his or her income. Like the enquirer above, you may be feeling the situation is so futile that it is not worth applying to IRD for an assessment and collection of child support.
I struggle to see any merit in “not bothering” to apply for child support in circumstances where coming to a private agreement with the other parent is not possible. By deciding it is not worth applying because your ex won’t pay, you are creating a self fulfilling prophecy – you are guaranteed of one thing: to receive no child support! When you apply for child support, IRD will assess how much is to be paid and will set about collecting it.
One thing you shouldn’t do is delay applying for child support. IRD does not back-date a parent’s child support liability. This means IRD will only assess and collect child support from the date it receives the application so delaying an application merely results in increasing the period of time for which you do not receive any support. Sometimes the lodging of an application sharply focuses the other parent’s attention on the issue and further discussions ensue resulting in an agreement. By making your application, you are at least getting some child support in the meantime. If things change and you come to an agreement about child support, you can always withdraw your application with IRD or lodge a voluntary agreement for IRD and ask IRD to collect the child support that is to be paid under that agreement.
IRD has a lot more tools for collecting child support at its disposal than you will have. For example, if a parent doesn’t pay, IRD can have the payments taken from that parent’s wages or bank account. IRD can also charge penalties for non payment and take legal action to recover owed child support.
Often people are concerned that the other parent will respond to a child support application by “hiding” their income through a trust or by being self employed. The result being that the parent is assessed to pay a lower amount of child support. This is a difficult scenario to resolve. When first assessing the amount of child support to be paid, IRD will use income information it holds from the previous calendar year (for salary and wage earners) or two tax years ago (for self employed or overseas parents). This makes it hard to initially “hide” income unless the other parent has been doing so for some time prior to the application. Later, if the other parent’s taxable income drops significantly, you can apply to IRD to review the resulting lower child support assessment on the basis that the other parent’s full income or earning capacity are not being fully taken into account in the assessment.
There are no easy solutions if a parent is determined to minimise their child support liability. However, for most people, getting something by making an IRD application is better than the alternative of receiving nothing.
For assistance with financial support and other family law issues, give Family Law Results a call on (09) 297 2010 or drop us an email at lawyers@familylawresults.co.nz.
Lance and Cerise had been living together for three years when Lance finally took the advice of Beyonce and “put a ring on it”. Cerise was ecstatic at the 1 caret of diamond and gold brilliance she now had sitting on her ring finger. She immediately got out the wedding folder she’d been storing bridal magazine cuttings in for years. She and Lance spent many week ends visiting potential wedding venues, booking caterers and deciding on invitations and table settings. The wedding plans were all going swimmingly until one day, Lance announced to Cerise that he couldn’t go through with the wedding. He believed he now had feelings for someone he had met on his indoor netball team and all this wedding planning was just too stressful for him!
Lance and Cerise were ultimately able to agree on how to divide most of their property except when it came to the issue of the engagement ring. Lance had used up a large part of his savings and borrowed some money to buy it so he argued he should get it back or at least be paid back for it by Cerise. Cerise, on the other hand, felt the ring was hers and that given he was the one to cancel the wedding, Lance shouldn’t add insult to injury and expect to keep the ring as well.
So what does the law say? Under our relationship property laws, gifts made to a partner for their use alone is the separate property of the recipient. A gift of jewellery will usually be the separate property of the recipient. Thus, unfortunately for Lance who is no longer taking advice from Beyonce, the engagement ring is Cerise’s to keep – it doesn’t form part of the relationship property pool for equal division.
Need assistance with a relationship property or separation issue of your own? Give us a call now to discuss how Family Law Results can help you: ph 0064 9 297 2010 or email lawyers@familylawresults.co.nz.
A reader of this blog asked whether a relationship home should be valued by a registered valuer or by a getting a number of real estate agents and whether the Court had a preference. Property valuation? Property appraisal? They’re the same, right? No, they are not and the distinctions between them can be important when it comes to making decisions about what is often the largest asset in a relationship property pool – the family home.
Firstly, let’s look at the differences between a registered valuation and a real estate agent’s appraisal. A valuation report can only be prepared by a registered valuer. A registered valuer will have undertaken considerable education and experience in order to be able to arrive at a definitive value for your home, taking into account a wide range of factors. A valuer will charge for his or her services. The valuer is legally responsible for his or her valuations and will base it on relevant evidence and information about the property (having viewed it), the market, Council zoning and any legal issues.
An appraisal can be done by a real estate agent and is an indicative estimate based on recent sales of properties in your area. It is not a true indication of the actual property value and often appraisals by different agents can vary considerably. An agent does not usually charge for an appraisal – it is often seen as part of their marketing to get your listing. An agent is also not legally responsible for the appraisal in the same way as a valuer is for a valuation.
So, faced with a relationship property division, when would you use an appraisal and when would you use a valuation? In large part the answer to this depends on what you intend to do with the home. If you and your spouse have agreed to sell the home then the market will ultimately determine the value of the home. Obtaining a number of real estate agents’ appraisals will help you decide on an agent to list with, how to market the property and the price range you may expect to sell for. If you and your ex cannot agree on these aspects of selling the home, then you may need to ask the Court to decide these issues in which case you will need a valuer’s report and recommendations as expert evidence for the Court.
If you are getting an appraisal, don’t rely on just one – get a number of them, take out any that are wildly varying from the rest and then take an average of the remaining appraisals. Being estimates, you will usually find they vary. I have seen clients impressed by a high appraisal only to be disappointed later when the market didn’t live up to the expectation this created.
If one of you is going to buy the other out of the home, then a registered valuation should be obtained as it will assist you each to make a properly informed decision about the purchase price to be paid. For the buying party, a valuation gives peace of mind that too much is not being paid for the property. For the selling party, a valuation gives peace of mind that an appropriate payment is being received for the home. Banks will usually require a registered valuation when considering an application for finance to purchase one party’s share of the home. Again, if there is an issue about the value to be attributed to the home for one person to purchase the other’s interest in it then valuations will be needed as expert evidence for the Court.
Some clients baulk at the prospect of paying for a valuation. However, most see the value in getting a valuation when they consider the peace of mind it gives them in being able to make informed decisions about . Often the valuer’s fee is more than recovered when the client receives the valuation and, recognising it differs from their estimate, revises their settlement proposals.
Got a relationship property issue? Call us at Family Law Results on 0064 9 297 2010 or lawyers@familylawresults.co.nz
