The importance of financial advice in a family law property settlement

Most property settlements are reached through negotiation, without going to court. Negotiations can be formally documented through a binding financial agreement or consent orders. As a last resort, the parties may need to initiate court proceedings whereby orders will be made regarding the division of the parties’ property.

No matter how a property settlement is reached, it is important to be aware of the financial impact of the proposed agreement before finalising it. A family lawyer may recommend working with a financial professional (a financial adviser and/or accountant) to ensure a property settlement delivers an optimum financial outcome for the client. We explain below some of the benefits of working collaboratively with a financial professional and family property settlement lawyer.

Identifying and classifying assets and liabilities

A financial professional can help to properly identify, classify and evaluate the parties’ assets and liabilities, whether these are held jointly or individually. Assets can be held in various ways, whether through a trust, company or shares and it is important that a full understanding of the asset portfolio is obtained. Only by presenting a complete picture of the parties’ financial position, might a fair and reasonable property settlement be negotiated.

In some cases, it may be wise to have certain assets, such as business interests and company shares, formally valued.

Recommending tax-effective strategies

Understanding the tax implications of a proposed property settlement can have a significant impact on the net result for each party.

The retention, transfer or division of different types of assets can have different stamp duty and tax consequences.

A financial professional may recommend strategies and structures for the division of assets to take advantage of duty concessions and tax exemptions or deferrals that may be unique to family law property settlements. Depending on the stamp duty and tax consequences applicable to that class of asset, it may be more advantageous to retain one type of asset over another.

A financial professional may also flag potential future CGT liabilities, which is an important consideration when negotiating the division of property. Advice on transactions concerning companies and trusts may also play a significant part in this task.

Advising on superannuation

If a superannuation split forms part of the proposed property division then you will either end up with more, or less in your superannuation account. This may require a reassessment and restructure of your retirement plans. A financial professional can help to identify the net effect of a proposed superannuation split and assess future needs and contributions towards superannuation.

Assessing future needs and planning ahead

Most financial professionals have knowledge of family tax payments and child support and can assist in determining entitlements and/or obligations.

Your financial professional can help implement strategies on how to get back on your feet, financially, after separation. This may include budgeting advice and money management strategies, recommending appropriate insurance to protect your income, managing and protecting assets, and developing plans to work towards your financial goals.

A financial professional and lawyer can work together to implement an effective estate plan in consideration of your new personal and financial circumstances.

Conclusion

Separating couples are often anxious about their immediate and future financial needs and may seek assistance to achieve a fair and reasonable property settlement. In doing so, it is important to remember that lawyers provide legal advice and not financial advice. Including a financial professional in your team can be helpful when negotiating a property settlement.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on +61 2 9283 3344 or email [email protected].