11 Comments Family & de facto law, financial agreements, consent orders
If he is earning lots of money it's his business what he does with it. If on the other hand he is spending savings accumulated during the relationship, then you should do as suggested a couple of times in your other threads, that is, look at the possibility of getting an injunction preventing him from disposing of or dealing with assets & money. Have you looked into that yet?
rtop - wasting cash savings and shifting them here and there is a relatively easy one to counter. As long as you've got records of what the bank balances were when you guys separated, you should be allright.
People will say it is the value of the assets at settlement not at separation that matters.... Well sort of .... but sometimes it turns out effectively to be what was there at separation. Let me explain.
For cash you can easily argue that any increase is due to post separation effort (like how jaazzz said - "If he is earning lots of money it's his business what he does with it").
Equally if, all of that cash gets blown through "living the high life" it is consdiered "wastage". That (1) makes him look really bad (called losing credibility) and (2) gets added back to the pool as a notional asset (in laymen's terms - think of it as whatever he's wasted comes out of his share in the end so it doesn't affect you).
Hope that helps. If you have a lawyer make sure he/she explains to you:
- How "add backs" work (this counters the wastage)
- Disclosure obligations (he has to give you bank statements)
- Building up evidence to destroy his credibility
It's a lot easier & probably cheaper to seek an injunction at the outset then to have to provide convincing evidence that funds existed & have been 'wasted' post separation.
Add backs are only really considered in relation to funds that you can prove were joint funds, & that have been spent on legal fees, disposing of or selling a provable joint asset without the knowledge or agreement of the other party & using the proceeds for your sole benefit or deliberately devaluing an asset or reckless & unnecessary spending for that parties sole benefit.
Any monies reasonably disposed by a party in the conduct of their post-separation lives should not usually be added back. Proving that is not the case can sometimes be difficult.
To be clear, any monies accumulated post separation as a result of ones own endeavours is not joint funds & therefore can not be subject to 'wastage' or add backs.
Incidently I have a friend who is going through as nasty settlement and the same thing happened - big spending after separation. Units, race horses etc. She has been advised she cannot ad back in as it is too complex to separate before with after. BUT her case is complex with a big compo payment plus sale of stuff by both before official separation to try and prevent bankrupsy.
The difficulty in add backs could be case dependant I guess. Although in most cases, I suspect it would be dead easy. All the legalesse aside - in every case I've read where add-backs have been requested, common sense has prevailed and the dodgy party penalised. Could you imagine a system where add backs were prohibitively difficult? Hah, nothing would be left by the time you got to court.
rtop2004 - by all means seek an injunction so you get that protection. But second guess any advice that is likely to lead to you incurring more lawyers fees.
Bank statements don't lie.
Hi all- thank you very much for all your answers..
Just to update, we did the mediation- agreed to 'communicate' through a communication book. (Just the thought gives me goosebumps.) Agreed to stick with current care(He takes kids for 1 night sleepover per week)
Another quite urgent issue is this..
The interim hearing is on December. We haven't agreed on my daughter's school for next year.
I want (and enrolled) her to go to a religious school but x wants a public school which is 5 minutes walk from his place. My school is near my place (2 minutes walk) and his school is near his place, but I have kids during weekdays and I would have to do all the pickups and drop-offs and I cannot do that without a car.
So at the mediation, we 'kinda' agreed on a public school near my place. But if we let the judge to decide, do you think I have chance to send my daughter to the religious school near my place? On the other hand, if the judge decide on the school my x prefers, i am doomed!
What do you think? should I go for the public school near my place like we've agreed or should I go for the religious school?
[quote]What do you think? should I go for the public school near my place like we've agreed or should I go for the religious school? [/quote]
I think you should only go for the religious school if it very important to you - as you have already mediated it out, it sounds like it shouldn't be that big a deal?
Not where you want her to go, but if you sorted it in mediation it wouldn't look good going before a magistrate to say "I changed my mind" afterwards.
Hello fatho2. Thank you for your reply.
I haven't actually agreed to send her the public school near my place. We've 'agreed' that I would find out more information about the public school. We haven't agreed on sending her there at all..
And yes it is very important to me that she goes to a religious school, even for just a year and even if I have to pay all the tuition fees..
But I am not sure how it would be decided if x and I cannot agree..
[QUOTE=rtop2004] ...What do you think? should I go for the public school near my place like we've agreed or should I go for the religious school?[/QUOTE]
[QUOTE=rtop2004] ...I haven't actually agreed to send her the public school near my place. We've 'agreed' that I would find out more information about the public school. We haven't agreed on sending her there at all..[/QUOTE]
You should do as you agreed in mediation, whether that be to enrol her at the PS or find out some more info.
Probably best you look at the facts & the costs & make a rational decision based on those rather than going for one school over another based on personal perceptions & perhaps pre-conceived ideals.
You can get good & bad schools either public or private religious. If there are some compelling reasons to send your child to this particular school then you should put forward those reasons. On the other hand, if you are favouring this school only out of some sense of duty or obligation because of your own religious upbringing, then you may do better to try to set those feelings aside for now & just look at the facts.
Your child can get religious instruction from church if that's what's important to you. I can tell you for sure that a religious school is no guaranteed indicator of moral compass or a better level of education.
To add to what Jazzz said, follow up on the public school.
I would then suggest you go through and list the pros and cons of the public and religious schools - essentially the two choices you are facing at the moment.
Put the list up here perhaps - you need to show due diligence in giving the public school an honest appraisal whilst measuring the religious school with the same yard-stick. If you can show with a reasoned assessment why she should still go to the school you want, will have you in a much better position.