When an Ex-husband or Wife Delays the Property Settlement
When separating or divorcing, it’s common to want to get it over and done with so you can move on. It’s also common, however, for one party to delay the property settlement. This can be because it’s a common misconception that you cannot finalise your property settlement until after you’ve finalised your divorce; or for other reasons such as not being ready to move on, or thinking there might be the advantage of a better result by waiting. In fact, there are many more advantages to finalising your property settlement sooner rather than later. Here’s everything you need to know when an ex-husband or wife is delaying property settlement.
Why do ex husbands and wives choose to hold up the property settlement?
An ex-partner may wish to delay property settlement for a number of reasons, and some may be simply because they, or both of you, don’t understand the implications of not finalising a settlement.
You can’t come to an agreement
The most common one is simply because you can’t come to an agreement and your ex feels they are entitled to more than you are offering them. An ex-partner may also be feeling emotional about the separation and not prepared to move on, and therefore in denial about the property settlement.
You’re on good terms, so you don’t need a court-ordered property settlement
Your ex, or even both of you may believe you don’t need a property settlement because you’re on good terms so you can simply transfer that asset from one person’s name to another and move on with your lives.
Unfortunately, if you transfer a property from one name to another, you will pay stamp duty, however if you do this in a property settlement, the stamp duty cost is waived. So calculating the cost of the stamp duty compared to the settlement and legal fees may make it clear that a settlement is more cost effective.
Secondly, if you choose to come to an agreement verbally, this is not legally binding, and therefore either of you can decide to commence the process of a property settlement at any time, leaving you at risk.
Your ex believes it will financially benefit them to delay
Your ex-partner may believe that delaying the settlement will benefit them financially in some way. For example they may wish to stay in control of certain assets, such as the family home, where they may be living rent-free until the settlement is completed.
Secondly, if you have debts, until you have a formal property settlement, these debts are both of your responsibility. This means if your ex gets into debt post-separation you could end up responsible for some of it when you eventually reach property settlement.
How do ex-spouses delay property settlements?
Refusing to disclose information
In order for a property settlement to take place, both parties involved are legally required to disclose all relevant information, most commonly to do with finances. If all of the information is not made available, a fair settlement offer cannot be made. This is called a duty of disclosure, and begins before the case starts, and continues until the settlement has concluded.
Full disclosure includes total direct and indirect financial circumstances such as all sources of income, interest, assets and liabilities such as loans and credit cards.
It is especially important to understand that if new information or documents come to light during the process, disclosure documents must be updated to include this to both the courts and all parties involved.
Not complying or not engaging
An ex-partner can refuse to consider any offers made or refuse to attend mediation sessions in order to delay settlement. They may do this if they believe it will result in a better offer being made.
Missing mortgage repayments
This is a common tactic that can be used to delay settlement when the family home is an asset that needs to be sold or divided in the settlement. If you are to buy out your ex-partner’s share of the home, or the other way around, falling behind on mortgage payments can cause issues in qualifying for refinance. This is because most banks require that you can prove six months worth of perfect mortgage payments.
Ignoring all attempts at contact
Finally, an ex-partner can simply ignore all attempts at contact as a tactic for delaying settlement. This is arguably the most common tactic when the party isn’t emotionally ready to move on.
What can I do when my ex husband or wife is delaying the property settlement?
The first thing you should do is speak to an experienced family and divorce lawyer. They can assist you in the steps to take to complete your property settlement as quickly and smoothly as possible.
The first step toward reaching an agreement would be to write to your ex-partner to ask them for full and prompt disclosure in a specific timeframe. If this doesn’t work or you have evidence that your ex is hiding some assets or information, you can apply to the court for an order to disclose. You can also request a mediation to discuss the settlement with a mediator.
If none of the above works and all attempts to contact and negotiate fail due to your ex, you can apply to the court for a property settlement.
How can I put off my own property settlement?
If you believe it may benefit you to delay your property settlement, you can avoid communication with your ex-partner, refuse to disclose information, or not engage with the attempts to settle for a short period of time. You should avoid missing mortgage repayments at all costs, as this will impact your credit rating and ability to borrow in the future. You also need to be aware of the time limits that apply, and not to cross these, or let the proceedings reach a court order against you.
What are the advantages of delaying settlement?
As mentioned above, an ex-partner will most likely want to delay the property settlement if they believe it will give them an advantage. They may do this because they are aware that you are likely to receive a large sum of money in the near future, you are purchasing a property or the family home is about to increase in value.
On the flip side, they may have large debts that they know will get larger, so the longer they delay the property settlement, the more debt they may be able to divide with you.
Alternatively, they may want to delay for so long as to completely avoid a property settlement altogether to protect their assets.
What are the disadvantages of delaying settlement?
The longer you delay your property settlement, the more complicated it can become, with your relationships, your assets, and moving on with your life. Finalising your property settlement means that their debts don’t become yours and your assets don’t become theirs.
Your assets are valued at the time of settlement, not separation
Assets to be divided include property, savings, debts and super, and it’s important to recognise that things like super and savings will likely grow over time, so the longer you delay the settlement process, the larger these may be.
Similarly, you could purchase a property, receive an inheritance, or if your business grows to make more money for example, post-separation but prior to finalising your property settlement, these assets will be included in the asset pool. Anything that is included in the asset pool your ex-partner is entitled to a portion.
The same goes for debts or running assets down in value. So if your ex-partner is not great with money, there is a risk that you may be required to take on a large portion of their debt, the further settlement is delayed. They may also decrease the value of certain assets by withdrawing money from bank accounts, drawing on the mortgage, taking valuable items, or running credit cards up to their limits.
Holding an amicable relationship with your ex
If you maintain an amicable relationship with your ex-partner, you should aim to begin the property settlement process as soon as possible, in order to reach an outcome that suits both of you quickly. Just because your relationship is amicable now, doesn’t mean it always will be.
It’s common for relationships to turn sour quickly if one party doesn’t like what the other is doing or if one enters a new relationship, for example. And when this happens, it’s common for the party who is unhappy to want to demand more from the asset pool as a form of payback, or feeling like they deserve more.
It’s always advisable to speak to an experienced family and divorce lawyer prior to conversing with your ex-partner about property settlement to understand how it works, as well as what you are both entitled to and obliged to do.
Inheritance in the event of death
It sounds morbid, but until you get divorced, your ex is still your spouse, and if you or they pass away, the other partner is left with either the inheritance, or the debt, even if you have a will. Updating your will post-separation is important, however until your divorce is finalised, your ex may be able to make a claim under family provision legislation as your spouse, and still be entitled to an inheritance.
Updating your will, and finalising your divorce and property settlement is also important for protecting the inheritance of your children, or other family members you wish to receive your assets in the event of your death.
Can you get in trouble for delaying a property settlement?
If you refuse to engage with your ex when they are attempting to complete a property settlement with you, as mentioned above there are a number of steps they can take to reach the agreement. If all of their attempts fail, you may find yourself hit with a court order for a property settlement that is largely outside of your control. In order to avoid this, it’s highly recommended that you seek legal advice to understand your rights and responsibilities, and how to come to an amicable agreement as soon as possible.
Is there a time limit for completing a property settlement?
Many people don’t realise that time limits apply to finalising property settlement. The time limit depends on the relationship you were in.
If you were in a de facto relationship, you have two years from the date of separation to apply to the court with any property settlement orders.
If you were married, you have one year from the date your divorce is finalised to apply to the court.
If you are separated but not yet divorced, there is no time limit, however you do not need to wait to finalise your divorce before starting your property settlement proceedings, they can, and should be started as soon as possible.
If you haven’t come to an agreement outside of these timeframes, you should contact an experienced family and divorce lawyer to find out your options.