The marriage between Arnold Schwarzenegger and Maria Shriver is officially over, more than 10 years after Maria petitioned to end her then-25-year union to the former action star and Governor of California. Attwood Marshall Lawyers Family Lawyer, Laura Dolan, discusses the important things to be aware of when you are separated but not yet divorced.
Background
After a 25-year marriage, which resulted in having four children together, Maria Shriver filed to divorce Arnold Schwarzenegger in 2011. The separation came after Schwarzenegger disclosed he had an affair with their housekeeper in 1996 and fathered a secret child. The housekeeper had worked for the Schwarzenegger family for 20 years.
When the couple married in 1986, they did not sign a prenup. Shriver and Schwarzenegger’s children range from ages 24 to 32 at the time they got divorced.
The separation
Arnold Schwarzenegger and Maria Shriver have been happily separated for the past 10 years. It is unclear why the process of divorce has taken so long.
Much of the divorce delay could be attributed to the pair’s complex property settlement, which was convoluted due to the fact the couple are estimated to have an asset pool of US$400 million ($552 million in Australian dollars) and no pre-nuptial agreement or financial agreement in place. It is expected that the couple will likely split their asset pool down the middle.
The issue of parenting was relatively quickly resolved in 2011 when Maria applied for divorce with the pair requesting joint custody of their two youngest children, Patrick, and Christopher Their two other children, Katherine and Christina were already adults at the time they separated.
The undivorced
It is not uncommon for couples to remain separated without finalising their divorce for many years. It even has a term, called the “undivorced”. There are several reasons why some ex-couples choose to delay the divorce, including for financial reasons or to maintain joint insurance policies as a family, or simply not making it a priority and setting time to get the paperwork done. Some ex-couples also choose to remain married for the kids and to try to continue life as normal for as long as possible.
In the case of Shriver and Schwarzenegger, the reasons the divorce may finally be coming to fruition could be for financial reasons, or romantic reasons, with Schwarzenegger said to be in a relationship with Heather Milligan, who he has been dating since 2013.
Schwarzenegger is only believed to have hired his divorce lawyer relatively recently, while Shriver retained the services of celebrity divorce lawyer, Laura Wasser, back in 2011.
Financial details of the former couple’s property settlement have remained confidential. With the former couple’s four children now all adults, no child support or custody arrangement was required. Settlement papers stated that neither Shriver nor Schwarzenegger owe the other any spousal support
Separated but not divorced – what needs to be considered
There are no set legal processes to separate from your former spouse. You don’t have to apply to a court to separate or fill out any forms. Once you’ve made the decision to separate it’s a good idea to get initial legal advice so that you can ensure that all the financial and family aspects of your relationship are properly dealt with as you move into the next phase of your life.
There are various steps and processes you will require legal assistance with throughout the separation process which need to be addressed prior to applying for a divorce. These may include:
- parenting orders or parenting consent plans
- child support
- spousal maintenance
- a property settlement
- a binding financial agreement
- updating and revising your Wills and estate plan
Kids come first
For couples with young children, this aspect of separation can be one of the most sensitive and difficult issues to resolve. It is important for parents of young children to focus on what is in the best interest of their children. When emotions are running high after a relationship breaks down, it is easy for parents to enter a battle over their children and to primarily think about their own feelings and what they want. Determining who the children will live with and how and when they will spend time with each parent, as well as extended family, is important to establish as early as possible.
Entering parenting orders or parenting plans is the ideal approach to ensure both parents can come to an agreement that they are comfortable with and that considers the best interests of their child/children. Entering a parenting plan can be a way to negotiate an informal agreement that provides greater flexibility, however, is not legally binding, which means there needs to be a certain level of trust and respect by both parties entering into the parenting plan to ensure it will be followed. A Parenting Order is made by a court and outlines what both parents’ obligations and duties are. A Parenting Order is legally enforceable which means if one parent breaches the order, a court has wide powers and can impose certain penalties.
A parenting plan or parenting consent order may deal with the following issues:
- who the child, or children, will live with
- the time the child/children is to spend with each parent and extended family
- the allocation of parental responsibility, specifically dealing with the responsibility for making decisions about major long-term issues affecting the child
- the communication the child is to have with other members of the family
- the maintenance of the child
- dispute resolution processes
- the process to follow if the plan needs to be changed
- any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Child support
Whether a couple chooses to remain married after separation or fast-track to divorce, the issue of child support will still need to be settled. Parents have an obligation to continue to provide for their children. After separating, one or both parents must make child support payments to the other to contribute to the costs of caring for the child.
To determine child support payments, parents can agree on an arrangement, or they can apply for an administrative assessment through Services Australia.
In most cases, child support continues until a child turns 18.
It can be possible that child support payments will extend past the child’s 18th birthday in circumstances where they are completing secondary or tertiary education or have a mental or physical disability.
Financially supporting your former spouse
Section 72 of the Family Law Act 1975 provides that a party to a marriage is liable to maintain the other party to the extent that the first party is reasonably able to do so if the party if the other party is unable to support himself or herself adequately.
Like child support applications, a party can apply for spousal maintenance seeking financial support until all issues in the Court have been resolved. When determining if and how much spousal maintenance should be paid by one party to the other, the Court considers the income levels of both parties and the expenditure of each party for their daily living and other expenses. If a person does not have the income to meet their living expenses or other reasonable expenses, then that party is considered to have need.
It is not just married couples that may have a right to spousal maintenance upon separation, but de facto partners may also be able to claim spousal maintenance.
Property settlement
Property settlements tend to be the biggest issue causing battles when relationships come to an end. Splitting assets or property can be very difficult and negotiations can get very heated before a final agreement is made. One common misconception many people have is that they need to wait for their divorce to be final before they can begin dividing property. That is not the case. A property settlement can happen immediately after separation and can be finalised long before your divorce is.
Generally, it is recommended to finalise your property settlement as soon as possible. Time limitations do apply which means you will need to try to finalise a property settlement within 2 years from the date of separation, or within 12 months of the date of divorce.
The Family Law Act 1975 sets out the process for determining appropriate property division of any net assets of the relationship.
A property settlement may include assets that is often referred to as the ‘asset pool’:
- real estate, including the family home
- money, whether it be held as cash or in bank accounts, or inheritances
- investments
- insurance policies
- share portfolios
- superannuation
- personal property including cars, furniture, jewellery, etc.
- debts including mortgages, personal and car loans, credit cards and other debts.
To determine what each party is entitled to in a family law property settlement, the court applies the following four-step process:
Step 1: Establishing net asset pool and valuation of assets
Step 2: Contributions towards the net asset pool throughout the relationship
Step 3: Considering the future needs of each party
Step 4: Determine whether property settlement is just and equitable
Whilst this four-step process may seem simple enough, it is best to discuss your situation with one of our experienced family lawyers, as each decision is made on a case-by-case basis.
Changing of Wills and estate plans – something that is often forgotten!
When a relationship comes to an end, it is important to understand the effect marriage, divorce and separation can have on your Will and overall estate plan. Your Will should reflect any significant changes to your personal circumstances or relationships throughout your lifetime. When going through the process of separation or divorce, it is understandable that updating your Will is probably the last thing on your mind, however, a new or revised estate plan should become one of your top priorities.
Unlike divorce, separation from your spouse does not influence your Will. The period of separation that occurs prior to divorce is an important time to ensure your Will reflects your changed circumstances. If you no longer wish to provide for your ex-partner, then one of the most important things you should do after separating is change your Will and revoke any Enduring Power of Attorney documents that you may have put in place, appointing your former partner.
If you do not update these important legal documents, if you pass away before you have made the changes to your Will, and your ex-partner was named as a beneficiary of your estate, they will still be the beneficiary and receive that portion of your estate. Similarly, if your Will names your former spouse as your executor, they will be entitled to take up that role upon your death, regardless of if you wanted them to or not.
There’s no doubt that family breakups are one of the most stressful and painful experiences any family must confront. Family law is a specialised and extremely complex area of law so it’s vital to make sure that you are supported by an experienced family lawyer if you are faced with any of the issues discussed in this article. Seeing a family lawyer who is also experienced in Wills and estate planning is crucial so that you can deal with the overlapping legal issues that apply when going through separation and divorce.
Attwood Marshall Lawyers – helping families resolve issues and reduce conflict
Our dedicated family law team specialise in all aspects of family law including guiding clients through the process of separation, divorce, property settlements, binding financial agreements, parenting disputes, child custody, estate planning, child support, and spousal maintenance.
We can help you understand your rights and obligations and will guide you through this challenging time and change in your family circumstances. We want to help you move on with your life as quickly as possible and reduce conflict in your family.
For advice or to discuss our family law services, contact our Family Law Department Manager Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call our 24/7 phone line on 1800 621 071.
Read more:
For love and finances: why every couple should consider a Relationship Agreement
Divorce later in life: 3 common reasons why relationships can break down in your twilight years
Are we more than “just friends” in the eyes of the law? Understanding your entitlements or obligations when a de facto relationship ends
Prenuptial Agreements, Relationship Agreements, Financial Agreements – what’s the difference, and do we need one?
