One of the most searched questions is ‘can I sell my assets before divorce?’. There is no such thing as an instant divorce in Australia. Couples need to be separated for 12 months before filing a divorce. If there is a three-month or longer period of failed reconciliation, the 12-month separation period begins again. It takes at least four months from filing for divorce to finalising one.
Property settlement is an agreement between the parties to divide their assets, liabilities, and financial resources after a divorce. Reaching a property settlement doesn’t require the court’s assistance. One of the first tasks in property settlement is to identify the parties’ property pool.
The property pool is determined by evaluating the parties’ assets and liabilities and assigning a value to those assets and liabilities. Can I sell my assets before divorce? Technically, yes. However, there are a few things to consider in this article if you’re selling your assets
Can I Sell My Assets Before Divorce: The Court’s Involvement
Can I sell my assets before divorce and get away with it? Any earnings from such sales would be deemed marital property and divided in the event of a divorce. If the court finds foul play, the courts may penalise the selling party. If parties try to hide or minimise the worth of assets not found during the divorce, it will be considered foul play.
The Court will also consider whether the property was sold at a reasonable price. If the things were sold for less than fair market value, the court may add value to the transaction. This is in order to achieve a more equal allocation of marital assets throughout the divorce process.
Petition for The Dissolution Of Marriage
This article about ‘can I sell my assets before divorce?’ thus far has been about asset sales before divorce. However, the situation changes if a Petition for Dissolution of Marriage has already been filed. There is an injunction, or block, in effect after the Petition for Dissolution of Marriage is filed. This prevents the sale of marital assets.
After the filing of the Petition for Dissolution of Marriage, the sale of real estate is usually avoided. This is because title firms frequently do a check of the owners’ identities. Moreover, if this petition is pending, title firms generally refuse to sell the property without the other party’s consent.
This is true for properties owned by one or both parties. You may be able to contact the title company and have the transaction halted even if you have not yet filed for divorce. A legal case is the last thing that most title firms would want to face.
Thus, the transaction will most likely be halted. The name of the title business can be obtained by calling the seller’s realtor. Both signatures are necessary for the sale of any other property titled in both people’s names. Examples are cars or other vehicles.
Can I sell my assets before divorce and have the transaction reversed afterward? Section 106B of the Family Law Act 1975 can answer this. This section states that the court can set aside a transaction that is done to oppose an existing or expected order in family law proceedings. This is regardless of motivation.
Consider a long-term partnership in which the husband is the major breadwinner and the wife is the primary caregiver for the two children. The parties own a home, an investment property, and some retirement savings.
Following their divorce, the husband transfers the investment property to his sister without the wife’s consent. In this case, the court might order the transfer of the residence to the husband’s brother to be cancelled under section 106B.
In any instance, the provision will not provide relief if a former spouse has sold assets. This is because the party seeking relief must show that the transaction ‘defeated,’ its claims rather than reducing’ it. Proving this can be difficult.
The party seeking relief must also demonstrate that the buyer is not “legitimate”. To reverse the transaction, the buyer must not have bought the asset with “clean hands”. To prove this, they must have known that the item did not belong to the seller to sell to them in the first place.
Can I Sell My Assets Before Divorce: What Your Ex Can Do
Can I sell my assets before divorce without my ex’s permission? You may begin selling or transferring your assets if your ex doesn’t resolve asset divisions soon. Your ex can get assets back if the item was sold to a legitimate third party buyer.
Ex-partners often disperse assets, transfer them to family and friends, or sell them privately after a divorce. This is in order to remove those assets from the property pool eligible for distribution. Ex-partners can also hide them from the other party. Here are practical ways that your ex can do so, to stop you from selling your assets before divorce:
- Make a list of assets. Your ex can even consider getting help in tracking assets
- He/she can watch your bank accounts for withdrawals or large deposits. This indicates selling of a property.
- Your ex can sign up to get notifications if someone accesses their credit card reports.
- Your ex can also watch for bankruptcy attempts through bankruptcy registries.
- He/she can catch any attempt of selling property by checking real estate websites. This is to ensure any marital assets aren’t on the market.
- Your ex can also check for joint signatures on the mortgage and mutual bank accounts.
- Get legal advice from a solicitor.
Seeking Legal Advice With A Solicitor
As mentioned, your ex can track assets down and have the right to seek legal advice. To counter this, you can also seek professional help from JB Solicitors. Our seasoned lawyers can help you decide whether it’s wise to sell assets before or after your divorce.
We also have mediation services if divorced couples want to settle assets equally and peacefully. This prevents couples from going to costly court procedures. Can I sell my assets before divorce with legal help?
You can do so by contacting JB Solicitors today.