During the beginning of your family law matter, there are many valuable documents that you should obtain. It is not uncommon for these documents to disappear after separation, and it can be a painful process to either get them back or apply for new ones. Documents that you should consider keeping safe in your possession are the following:
- birth certificates
- marriage certificates
- death certificates (of any family members)
- financial records
- your and your children’s passports
- photos, baby books, school reports, etc.
Leave them with someone you trust or take them to work for safekeeping if you don’t think they are secure at home.
SENTIMENTAL OR VALUABLE ITEMS
You may have a few things that have sentimental or other value, such as jewellery, family heirlooms, old photos, trinkets the kids have made, collectables or memorabilia that you would like to keep during your divorce or separation. If you do have anything like this that you really want to keep, it is a great idea to put it away somewhere safe. Sadly, when it comes to these smaller items, the saying ‘Possession is nine-tenths of the law’ is accurate. I have been in so many family law matters where these types of items are held to ransom. It is terribly frustrating for the client who just wants their grandmother’s ring back, or a worthless but sentimental record collection they’ve had for thirty years. The amount of negotiating it can take to retrieve these items from a hurt, vengeful, or angry ex-lover can cost thousands of dollars. So be smart; keep your valuables safe.
A while back, we had a situation where a client’s ex-wife had in her possession a piece of family jewellery that had been given to her by her husband (our client). The said piece was more than a hundred years old and had been passed down through the generations as a wedding gift. The couple had no children as they had only been married a short time. The piece had no real value, but a huge amount of sentimental value to the husband and his family. It was our client’s view (that we supported) that the ex-wife should give it back to the family so that it could continue to be passed through the generations; however, she refused. She used that sentimental piece as leverage, which was simply a dirty game to play.
To avoid this type of situation, it is easier to take these types of items at the outset, rather than have them potentially used against you. You may think your ex-partner would not do that, but believe me when I say that separation and divorce can bring the worst out in people, and you don’t really know a person until you divorce them!
CHANGE YOUR WILL
When you become separated, your Will remains in place unless you change it. A lot of people don’t realise this, and it is a really important issue. What this means is that if you die during your separation period (God forbid, but it does happen), your ex-partner will get your assets. I am not kidding! So, it is important to change it straight away.
It is also important to note that you will need to change your will again once you become divorced, as your current Will will no longer be valid after your divorce. Most estate planning documents in most Australian states are revoked upon divorce, to the extent they provide for the former spouse, therefore you should make a new will after separation and then another one after divorce.
It is possible to make a will and arrange power of attorney in contemplation of divorce, which means that the divorce won’t revoke the document if it is expressly contemplated within the will or power of attorney. On this basis, it makes sense to update the documents upon separation rather than waiting until the divorce is finalised.
When you separate and divorce, it is normal for your estate-planning objectives to change considerably, and there could be disastrous consequences if you were to pass away or lose capacity without updating your estate plan. Sadly, I have seen this happen firsthand, and it truly was a very awful situation. Upon our client’s death, the ex-partner retained all the assets, including the deceased’s personal items. The parties had been separated for twelve months, and it had been very ugly. Our client’s family was devastated, as you can imagine.
It is particularly common for a client to want to nominate someone other than their former spouse as the financial controllers (i.e., executors and trustees), particularly to manage their wealth for the benefit of any minor children.
REVOKE ANY POWER OF ATTORNEY
Enduring Powers of Attorney (EPA) are as important as a will. If you were to lose legal capacity and your EPA nominated your former spouse as the financial attorney in the middle of property settlement proceedings, this could become very difficult if there were no proceedings on foot for the court to step in.
It can also be very upsetting for the family if a client loses capacity and the EPA nominates the former spouse as the medical attorney to make all medical and lifestyle decisions. Imagine if you were in a car accident, for example, and your ex-partner was then able to make those important medical decisions for you rather than, say, your parents, siblings, new partner or adult children. That would be a devastating situation.
CHANGE YOUR POSTAL ADDRESS
You may not need to, but consider whether your mail is safe being delivered to your home address. You could obtain a postal box or redirect your mail to a friend or family member for the time being to keep your correspondence safe. Again, I have seen many snooping ex’s!
REMOVE YOUR NAME FROM HOUSEHOLD BILLS
If you are the one moving out of the family home and you have agreed that your partner who is staying in the home is going to pay the ongoing utilities, you will need to consider transferring services such as the internet, phone, electricity and gas into your ex-partner’s name, if they are remaining in the property. If the invoices remain in your name and they are not paid by your ex-partner as agreed, there is little you can do about that except pay them. It is small things like this that can cause a lot of frustration if you don’t think about them early on.
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