by Jeebs  16/01/2014  576 Page Views
8 Comments  Family & de facto law, financial agreements, consent orders
Well, the ongoing settlement is still ongoing......

I posted here over a year ago with my situation but I'll recap and update it. Sorry that this is long but our case is not a typical one.

Married for 15 years, two children (11 & 8) with our eldest having severe intellectual disabilities and special needs. Our divorce was finalised August 2, 2012.

In October 2012 we drew up and signed a "heads of agreement" outside of the courtroom after about an hour of negotiations via our lawyers. Ex's lawyer wrote up the agreement and ex and I both signed it. It was fairly straight forward with split 65/35 in my favour as I have the boys 10 nights/fortnight. My share was to be made up entirely of cash and he would keep his super plus pay spousal maintenance for 10 years until our youngest turned 18 and child support slightly above the CSA rate. I know this is generous with regards to the maintenance but our son is very very low functioning and is not independent in any way and does require 24 hour care which I provide when he is with me. I also moved around the world in support of my ex's work and would quit job after job and limited my own career in the process. Once we had children I quit paid employment altogether.

The agreement also stated house to be sold, I would undertake health insurance and the asset pool would be divided at the date of settlement of the sale of the house.

Sounds pretty straight forward right?

Well, unfortunately the house took a year to sell and settle. We then went back into a conference where ex's lawyer stated we have misinterpreted the HoA and that all assets post separation will be removed from the pool and that we are only dividing assets prior to April 2011. The asset pool did increase a fair bit after separation but it clearly states in the HoA that the pool would be divided from the date of house sale settlement.   My ex also cancelled the kids health insurance from the date the house settled as per our agreement. When he didn't pay the maintenance from that date I called him and he said it was all sorted and that it might take a couple of days to come through. No problems I said, a few days later I called again, got the same story. The next day he informed me he wasn't paying it. He is, however, paying child support.

So, I've moved out of the house (as per the agreement) and am paying rent which his child support does not cover entirely.

Now, we have to go to trial. At our readiness hearing this week his lawyer is stating that the signed Heads of Agreement is without prejudice and that it should be excluded from our trial as well as ALL post separation assets of his (not mine though which are minimal). My lawyer is saying the negotiations and concessions made prior to signing it is without prejudice but it's not the case once it had been signed and presented to the magistrate in October 2012. We separated April 2011 and he now wants the assets calculated from that date (which is 18 months prior to our agreement and not mentioned at all in the HoA).

The asset pool is quite large and I've gone to being a wife of a corporate executive to living on centrelink benefits (as a full time carer) and only have about 3 months rent in the bank. I've asked for the house sale funds to be released but he's refusing. He keeps making low offers of less that 50% to myself and I'm concerned that I might have to accept.

Is a signed Heads of Agreement admissible during a trial? Also, can post separation assets be excluded from an asset pool? I know that each party is responsible for their own costs but my ex is giving me the option of signing an agreement out of duress or going to court at a cost of approximately $50k. He's been paying his legal fees as he goes and I currently owe about $45k to my lawyer. Is it unheard of to have costs awarded during a settlement trial?

I'm so sorry this is long, I'm just so so frustrated and tired from fighting for almost three years and am really struggling financially. I'm going to court asking for the Heads of Agreement to be recognised and settled.

Thank you all so much.
Jeebs2014-01-16 18:07:59