Family Law
Superannuation in Family Law Property Settlements
By Elizabeth Lane
As of 2002, superannuation funds can be considered as property and can be included within the asset pool of a property settlement. Prior to this however, superannuation was considered as a financial asset and so was dealt in a different manner to property.
There are different paths that can be taken in relation to superannuation. The Family Law Act gives the court the power to divide the superannuation fund, to adjourn the matter until the parties reach the time when they have access to their funds or can make orders for superannuation to be allocated once it is vested.
How is my superannuation valued?
Accumulation Schemes: benefit in such schemes is determined by the level of contributions and investment performance of the fund. Value is determined according to the latest membership statement.
Defined Benefit Schemes: benefit is determined by factors including years of service with the employer and salary levels. The full value of such a scheme cannot be determined until retirement.
Flagging of superannuation interests
The court is required to treat superannuation as property. It can either flag superannuation interests or split superannuation interests.
Superannuation interest in the growth phase (the period of time before the member spouse has reached a condition of release and before any money has been paid out of the interest as a result of the member meeting a condition of release) can be subject to a payment flag, which prevents the trustee of the superannuation fund from dealing with the superannuation interest until the flag has been lifted. This can only be done by an agreement or a court order to lift the flag. Payment splitting can be done by either a superannuation agreement or a superannuation splitting order. Superannuation interests are usually split according to the base amount of the superannuation which the non-member spouse will receive, however, superannuation amounts of 00 or less cannot be split. Parties are able to specify a method in which the superannuation interest will be split.
How is my superannuation split?
The starting point for splitting superannuation interest is the Webber/West and Green formula. This requires:
January 5, 2011
10:38 pm
family law………..
I have a friend that has gone through some tough times and for her children safety her brother and sister in-law agreed to take the kids for the summer. when school was getting ready to start the kids wanted to stay there for a year and go to school . my friend agreed to it and i guess she had to sign some papers giving them legal gaurdianship. after that year was up they told her that she need to change things before she can get the kids back. get a better paying job that pays at least 14$ an hour… ( around here thats imposible) drive a brand new car. have a bigger apartment. and move to the same state that they are in . and just leave all of her friends and family. she felt that it wasnt there place to tell her where , what, and how to live . they know that she doesnt have money . and she doesnt know how to fight this . she’s not a very smart person. she actually has some learning disabilities but that doesnt make her any less of a good mom. anyways this has been going on for 3 years . now she found out that her 14 year daughter has had sex and her brother and sister-in-law has changed the kids names without her consent. she sent a notarized letter saying they dont have her permission to change the kids name and that she wants her children back. she has asked for legal advice and she was told that she has to go to that state and get legal help there ( remember no money and no reliable car) she was also told to gather up they’r birth certs and SSN and drive down there and go take the kids … i realy dont know what to tell her . can anyone help .. she knows that her daughter wants to come home but her 10 year old might have been brain-washed. PLEASE PLEASE help … advice……
January 13, 2011
10:48 pm
contact legal aid maybe they can help
January 17, 2011
1:08 pm
Go to the citizen’s advice bureau, and they may be able to give you some advice.
January 19, 2011
1:05 pm
Family law?
Where can you get a free legal advice in family law?
Thank you
January 19, 2011
4:30 pm
Bottom line is that you will not be allowed to leave the country with your children if their biological father does not agree to the move. And if he wishes to retain visiting rights, I can’t see him wishing to do a transatlantic trip every time he’s due to see them (and indeed why should he??). Your husband had better start making plans to get back to the USA….
January 20, 2011
8:15 am
Ill tell you what I know.
The salary you make varies completely based on the market that you are licensed and practice. Most legal careers will pay you enough out of law school for you to pay off your student loans plus living wage. Once your loans are paid off you have more income from experience and no more loans means that you can live quite comfortably.
Family law is different from other kinds of law so it is impossible not to compare it to other kinds of law. Family law is usually not a salaried kind of position and usually you would be working for yourself – so there is no guaranteed income.
Family law is an area that you can charge a lot as far as hourly rate is concerned; if you are really good, and earn a reputation, for instance as a good divorce attorney.
Because of the fact that you are obviously working with families that could not reconcile to the point they would like to hire you for a couple hundred dollars a hour means that the situations that become your career can be emotionally tolling – much alike those that are felt by psychologists.
If you are an independent attorney working under your own name instead of for a large firm; you may find that your clients may not be able to pay their invoices because of the situations that they are in within their own lives that have warranted them needing a lawyer. And you can not get money out of someone that has no money. If you have the personality to become a family lawyer in the first place you probably aren’t the type to sue a recently divorced now single father for his assets to pay your $10,000 invoice.
On the other hand – if you chose a legal path such as real estate, or mergers and acquisitions – your clients are happy and they will always have the money to pay you – not to mention that your $10-20,000 fee is a drop in the bucket for their multi-million dollar real estate venture or multi-billion dollar acquisition. So the client is happy.
There are many things to consider… If you chose the first option; you can practice family law in just about any city or town in the United States. The second option requires that you work longer hours and live in a larger metro.
Also, keep in mind that it is very, very, difficult to get employment in a market different from where you got your JD. So if you go to law school in Colorado, per se, at a school that might not be internationally recognizably notable.. it is difficult to go to another city and practice law. The offices in the city you go to will be filled with law grads from that metro.
January 20, 2011
2:32 pm
I practice family law.
Family law is a thankless job. Emotions are higher in family law than in any other type of law. People’s families are being ripped apart, they aren’t going to be able to see their children every day, their standard of living is going down, etc. All of these things make family law clients crazy. Seriously. They are angry, scared, and confused, and because of this they often have a hard time thinking straight.
They also have very unreasonable expectations. Stay at home moms want to be able to continue staying at home (ha! Not going to happen!) A woman who has been married for a whopping two years wants alimony. A dad who travels all of the time for work and isn’t an involved dad wants 50/50 physical custody. What clients don’t understand is that their definition of “fair” isn’t necessarily how it works in the legal world.
Clients also don’t understand why the court system takes so long. I have clients constantly bitch at me because the other party hasn’t responded to discovery requests. They don’t understand that all I can do is file a motion to compel, and that takes time. Clients blame me when the earliest available court date is in two months. Family law attorneys are constantly blamed by their clients for things that are completely out of control.
Clients get angry about the process or the realities of divorce, and the most convenient scapegoat is their divorce attorney.
All of this said, I love practicing family law. Many attorneys won’t get anywhere near a family law case. So it just takes a certain personality.
You have to be able to be fulfilled with your job without any positive feedback from your clients. You have to listen to them complain and even blame and accuse you, and then just let it roll off your back and chalk it up to all of the emotions they are going through. I’m able to do this, so I’m able to enjoy my job. I love hearing people’s stories. There’s always new and crazy things happening in people’s lives, so I never get bored. It’s a strange job where you sort through every aspect of a family’s personal life – finances, sex life, health, etc. I just find all of this very interesting, which is why I like the job.
January 20, 2011
4:17 pm
Family Law?
I have custody of 2 children , reside in USA, am planning a move to UK to be with my husband. Childrens biological father (not my husband) has court ordered visitation rights to children…what is my legal position there should biological father pursue his visitation rights? Does US family court order pertain there? My husband is in England.
January 20, 2011
6:23 pm
Is family law the most stressful and frustrating practice are for lawyers?
I am a new attorney who has been practicing about six months now. I do primarily family law cases, and it seems like whatever I get for my clients they’re still not happy. They expect me to get them every single things they want no matter how unreasonable. Any other family law attorneys experienced this?
My clients don’t pay me. I work for legal aid.
January 20, 2011
8:10 pm
Does family law make a good amount of money compared to other jobs outside of law?
Is it a good job in general? Not compared to other kinds of law.
Also, if you work as a family lawyer do you have personal time to have a family?