An Australian same-sex couple can finally get divorced after same-sex marriage became legal this past week. The pair wed in a European nation’s consulate in Australia in 2015 but were unable to get divorced because they were not residents of the country where they were married.
Australian Couple Can Finally Divorce
This past week Australia signed same-sex marriage into law and a same-sex couple that had been separated were able to legally divorce.
Lawyers for the Perth woman filled out divorce papers just a day after same-sex marriage became legal. According to barrister Teresa Farmer, the separated couple found themselves in a “legal limbo” of being unable to divorce in either nation – they were wed in 2015 at the embassy of a European nation in Australia, but he country that married them wouldn’t divorce them because they were not residents and Australia didn’t recognize same-sex marriage.
“They were just stuck. [My client] was very much inextricably linked to this person and couldn’t do anything about it,” Ms Farmer said.
The divorce filing was possibly the first application for a same-sex divorce in Australia.
Several Approaches to Filing Your Divorce
You’ve done the hard part: made the decision to file for divorce. But what next? There are various ways you can file for divorce, also known as a “dissolution of marriage. Below we outline several ways to approach a divorce. How you proceed will be specific to you and your spouse’s situation.
Depending on your situation you will file one of these forms of divorce:
UNCONTESTED DISSOLUTION – Both you and your spouse agree on all issues of property, debts, custody, and support. You are both enter into an agreement to all issues.
CONTESTED DISSOLUTION – Either you or your spouse, or both of you do not agree to issues regarding property, debts, custody, and support. You will be required to go before a judge so that he or she can make judgments regarding these issues as well as ensure all documents of agreement are appropriately prepared and signed off on.
SUMMARY DISSOLUTION – You and your spouse have been married for less than 5 years, have no children, no assets, no debts, and both parties are in agreement about signing the divorce petition.
PUBLICATION OF SUMMONS – When the filing party does not know the whereabouts for the other spouse, and has no way to contact them, it is necessary for the spouse to publish a divorce declaration in a local newspaper for 4 consecutive weeks to be able to proceed with the divorce filing.
When people think of divorce, it’s not uncommon for those thoughts to be filled with anxiety, fear of potential bickering and ill will, and fear of lawyers who will drag things out and create hostility between you as a couple. But divorce doesn’t have to be a traumatic process when you follow the process associated with a collaborative divorce.
Collaborative divorce approaches the divorce process from a different place – a place where you can avoid the court system while putting negotiations and decisions into the hands of the spouses. By utilizing specially trained professionals, opuses are able to come to a decision together.
Collaborative Divorce v. Mediation
Collaborative divorce should not be confused with mediation. In mediation, a couple works with one neutral party. But in collaborative divorce, each spouse has their own team of professionals – including their own attorney, financial advisors, etc. Both spouses and their respective teams meet to identify issues and create solutions. The time it takes to work through the process is heavily dependent on the issues that need to be worked out. The International Academy of Collaborative Professionals did a survey on the duration of the process and found 58 percent of collaborative divorce cases were completed in less than nine months.
The types of professionals you will need for your collaborative divorce team will vary based on the specifics of your divorce. Professionals may include:
- financial neutrals
- child specialists
- mental health professionals
- business valuators
- real estate evaluators
This team can help you emerge with a solid footing following your divorce. “You can tell who’s gone through the collaborative process vs. litigation,” said Amy Wolff, a specialist in the financial issues associated with divorce. “The clients who have used the collaborative option emerge from the process more ready to focus; they can bounce back more quickly.” Approaching divorce with the mindset of it being “collaborative” can help ease the tensions surrounding the divorce process.
Another Option – Legal Separation
While divorce might seem like the only option, remember that legal separation is also available. Legal separation allows couples to live apart and take a “break” from each other, while also ensuring that each spouse’s legal rights are protected via a legal separation agreement. Legal separations can also be called: “judicial separation”, “separate maintenance”, “divorce a mensa et thoro“, or “divorce from bed-and-board.” All these terms refer to the legal process by which a married couple formalizes a de facto separation while remaining legally married.
Formal Legal Separation Agreement
It’s always advised that you sign a formal legal separation agreement. This agreement outlines child support and visitation, property division, and any other aspect of a marriage. An attorney will be able to prepare this legal and binding document. This will offer you legal protection should your spouse fail to live up to his or her obligations and will also also hold up in court.
The following should be included in the legal separation agreement:
Benefits – With legal separation spouses are able to retain certain benefits that were available during the marriage, such as health insurance.
Home Residency – If a couple shares a home, it should be decided at this time what will happen to the residency during the separation. The agreement should include information regarding who is able to live in the home, who is responsible for maintaining the home, and who is financially handling the home.
Joint Accounts – A legal separation agreement outlines who has access to those joint accounts such as joint checking, savings, and credit accounts. It’s often advised to close or freeze these accounts during the separation. Each spouse will then need to obtain their own personal accounts.
Protection from Acquired Debt – A legal separation agreement will shield you from being responsible for debt acquired during the time of the legal separation.
Why Pursue Legal Separation?
There are advantages with legal separation, including:
- Spouses are able to maintain benefits such as a spouse’s health care plan or military benefits.
- Staying legally married for 10 years allows couples certain social security benefits.
- The separation period allows for a “cool off time,” during which parties can work to resolve their differences. Couples can then decide to either pursue a divorce or resume the marriage.
- In some religions divorce is not allowed or recognized. Legal separation allows these religious couples to live separate lives while still remaining married and true their faith.
- Legal separation can be used to solve immediate problems in couples who are uncertain about moving forward with divorce.
Steps to Follow for Legal Separation
Here are the steps you will take to acquire a legal separation:
- Consider working with a family law attorney that can advise you on all the necessary steps of your legal separation.
- You and your spouse will need to decide on grounds for the separation
- Fill out a Form FL-100 Petition. This form includes options for divorce (dissolution of marriage) or legal separation.
- If you have children under 18, you will need to complete Form FL-105/GC-120 which provides information to the court regarding children.
- File Form FL-100 at your local county court. Pay any necessary fees. If you receive public benefits or have low income, you might be eligible for a fee waiver.
- Serve your spouse with a copy of the court papers if they were not filed together. There will need to be proof of the serving, which can be done through various means such as a process server. A family law attorney can advise you on how to obtain this proof.
Still Considering Divorce?
If following your legal separation you and your spouse decide to move forward with a divorce, you will still need to file a divorce petition and go through the formal divorce process. Since a legal separation agreement has already been created and you mutually agree all aspects of your marriage, chances are you will be able to file an uncontested divorce. If there are still unresolved issues, you might decide you need a court’s help to come to a decision. It’s important to remember though that just because you are legally separated, that does not mean you are officially divorced. A judge will need to sign off on the final divorce papers and agreement before you can declare yourself “single.”
Working with a Divorce Attorney
It’s always advised that you consider working with a family law attorney. They will be able to advise you on any number of issues, including: child support, spousal support, marital property division, child visitation, etc… A lawyer from the expert law firm of Divorce Law LA will be able to guide you through the divorce process. The Divorce & Family Law Offices of Divorce Law LA will provide you with the highest level of expertise and professionalism from our skilled attorneys. Our Divorce and Family Law Practice spans a wide spectrum of areas that include: divorce, high net-worth divorce, marital property division, child custody and visitation, and child support.
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