Updated: Aug 12, 2021
At Family Law Results, we encourage our clients to work with their ex as much as possible to resolve matters in their separation themselves. I’ve had numerous clients approach me with an agreement they and their ex have reached together about their property division that they needed me to finesse into an appropriate legal document.
In most cases, in their understandable preoccupation with obvious assets such as the home and bank accounts, there has been something that the client and their ex have overlooked. When I raise the missing issue or property item, I usually get one of two responses: “oh, we didn’t think about that” or “I didn’t realise that was relevant to the division!”. I’m fine with this. That is my job – to help them cover off everything and to catch the bits they may have missed.
If you are negotiating your property division yourself, I don’t want you to miss anything so I am shining a light on the 9 top items that get overlooked when an “uncoupling couple” are working through the division of their relationship property…
Previous Legal Arrangements – sometimes people don’t remember a previous agreement such as a pre-nuptial agreement or contracting out agreement that they signed. Some have not properly considered a Deed they entered into ages ago to create a Trust. Often, they don't think these things are important because they have agreed on how they want things sorted out. Others may assume that previous legal arrangements they entered into are no longer relevant because a lot of time has passed. Listen up. Previous legal arrangements are ALWAYS important for your lawyer to know about.
Flopsy and Kruger – yes, I know they may be your fur babies or perhaps even your favourite child but they so often get forgotten about or overlooked when it comes to sorting out who is keeping what. Although some jurisdictions have seen cases where “custody” arrangements for pets are ordered, in New Zealand pets are treated in law in the same way as your microwave or stereo – another chattel to be divided. Because they mean so much more to us than our microwave does, what happens to the pets can become a potentially heated issue when dividing up the property so be sure to turn your mind to it early on!
Kiwisaver and Superannuation savings – I am surprised at how frequently people express surprise when I tell them all, or some of, their or their ex’s Kiwisaver or superannuation funds need to be included in the pot of assets to be divided. Add them to your list!
Tools – While clients generally have covered off the items inside their home, sometimes they overlook the tools. Sometimes these will be used by a spouse in their trade but even if this is not the case, many households have accumulated an impressive array of tools. These are often relationship property and should be in the mix in your negotiations. If there is a sizeable collection of tools or specialist items, do check on the value of them as they could be worth more than you realise.
Debts Owed to or by Family– most of us are all over what we owe on mortgages or credit cards but often debts with family are assumed to have been gifts when they are not. What you thought was a gift by a parent may have been a loan from that parent. Money you think was given to you both from a family trust may have been a loan or came with conditions. That deposit for your home that you thought was an inheritance may also have been an advance or loan from an estate. Similarly, money lent to family members may have been overlooked. All of these need further examination and taking account of.
The tax man - Clients have often come to me feeling happy with what they have organised between them until I point out the tax man will also be taking a slice of their pie. Depending on the property you are dealing with and how you are trying to deal with it, there can be tax implications. Knowing what those are likely to be when you are considering your options for dividing up your property allows you to make decisions knowing how much, if any, of your property pool will be diminished by tax under each option.
Work related entitlements – Yes, accrued leave, bonus entitlements, employee share options or other work benefits that were accrued during the marriage might also fall into the asset pool to be divided so gather up that information also.
Loyalty points – who is going to get the benefit of those airpoints or store loyalty points that you’ve been carefully squirreling away during your relationship or marriage? I’m not suggesting you haggle over that tenth free coffee on your loyalty card with your local café but I have seen some pretty impressive airpoints balances and loyalty points accrued up that my clients hadn’t thought of.
Life Insurances – have you or your ex got life insurance? Did your parents start a life policy for you as a child? Most modern policies that I come across do not have any savings component. A payout under the policy is only made on the death or trauma. However, every now and then, a client or their ex will have an older policy that has a savings component attached to it which means, on cancellation, there is a nice amount payable to them. The value of that may well be property to be divided between you.
Even if there is no savings component, it pays to check who owns the policy over your life. If it is your ex or both you and your ex, any life assurance payment made on your death will go to you ex. Do you really want that? Paying attention to the life insurances means you can have them set up the way you now want them set up.
There they are - the 9 things most likely missed as you think about the division of your property! Had you missed anything? Was this useful? Let us know in the comments or over on our Facebook page. If you think a friend may find this useful, forward this to them!