Divorce Papers Checklist –
What are the Documents You Need to Know About?
Decided to get a divorce but don’t know where to start?
Divorce is the legal ending of your marriage. And like a lot of legal issues, there are documents and paperwork that you need to prepare. So, what goes into filing for divorce?
What is the difference between divorce and property settlement?
Getting a divorce order only covers the legal ending of the marriage. This means that property settlements, finances, spousal maintenance, and custody arrangements are all separate issues. It is highly recommended that you sort out all these things before getting your divorce order.
A property settlement is the division of your property. If you choose to go through the Court, both your individual and shared property is valued and then divided based on a variety of factors. Property is also valued at the date of your settlement – not the date you separated or divorced. So, if you’ve been separated for a while and have bought a house before your property settlement, it’s possible you could lose part of your house to your ex.
The bottom line? Don’t delay your property settlement.
When should I discuss divorce papers with my lawyer?
As soon as you decide to get a divorce, talk to your lawyers. The complexities and emotions of divorce can be overwhelming – professional legal advice can provide much needed clarity. Even if you and your ex have an amicable breakup, a lawyer will guide you through the legal steps to divorce, ensuring you’re protected financially going forward. There are a lot of issues in family law that you want to cover properly so that it doesn’t cost you more later.
What forms do I need to file for divorce?
The initial documents needed to file for divorce include
- A marriage certificate (along with an Affidavit Translation of Marriage Certificate if it is in a foreign language)
- A proof of Australian jurisdiction such as citizenship, passport, or visa
- A certificate as proof of the counselling requirement where a marriage was less than two years
- An Affidavit for eFiling Application (Divorce) that is signed by your lawyer witness.
Note that before you even file for divorce, you need to meet the requirement of separation for 12 months.
While getting a divorce order itself can be straightforward, there are other matters you will want to consider.
If you have children of the marriage under 18 years old, you will need parenting arrangements to get a divorce. The best approach is to make it thorough and legally binding through a consent order. This can also include your property settlement and spousal maintenance agreements. Each of these issues require their own documents, too.
For example, to help your property settlement, protect finances and obtain proof for any disputes, you will need these documents
- proof of date of separation
- bank statements
- tax records
- lease or mortgage documents
- superannuation statements
- and other financial documents that your lawyer recommends you collect or prepare.
DIY divorce kits aren’t going to be as comprehensive or protect you as thoroughly as an experienced family law specialist. Any consent orders, binding financial agreements or any document that handles your custody arrangements or finances should be prepared by your lawyer. These kinds of documents, especially binding financial agreements, have strict legal requirements that need to be adhered to. If not, they will not be legally binding.
Any gaps in an agreement can mean that a missed matter can be taken to Court, where they can use their discretion under the Family Law Act. Make sure that you have control in your divorce by having legal experts on your side.
Choosing collaborative divorce can allow you to negotiate these arrangements in a way that is respectful and avoids threats of court.
What is the process for filing divorce documents?
The initial documents that you and your lawyer prepare are used to make an application for divorce. This is now done mostly online. Your application and documents are filed to the Federal Circuit and Family Court of Australia (aka the Court).
When you file your application, a hearing date will be organised by the Court, which is usually eight weeks after.
You must then serve your ex with your application documents and the Marriage, Families and Separation brochure. There are several requirements for legally serving your ex
- the documents must be sealed and stamped by the Court registry (physically or electronically)
- the application must be served to your ex by a third party over 18 years of age (this means you can’t be the one to serve them unless it is by post)
- there must be an Affidavit of Service by Hand and Affidavit Proving Signature filed to the Court if done in person
- there must be an Affidavit of Service by Post and an Acknowledgement of Service (Divorce) (this needs to be completed and returned by your ex).
You don’t need to serve the application to your ex if you are applying for divorce jointly.
The divorce documents are just one thing to consider. To make the process feel less daunting, we’ve created a helpful guide to separation and divorce – take a look here.
What else do I need to consider?
It can feel like there is so much to do and prepare when getting divorced. But even one consultation with your family lawyer will give you clarity and confidence about the process.
Not sure where to start? Take our introductory quiz.
Ready to chat with a divorce lawyer? Get in touch with the team at Divorce Hub. We’re here to help.