What is a wife entitled to in a divorce in Auckland? Your spouse might think they are “entitled” to certain assets, custody, child support, and spousal support, and may even threaten you with “taking you to the cleaners.” It can create a very contentious divorce process when your ex makes these types of threats. However, neither spouse is “entitled” to anything—the division of assets, child support, and custody must be fair. Additionally, neither spouse is “entitled” to spousal support – the requesting spouse must show a need for support, and the paying spouse must be able to make those payments.
An experienced divorce lawyer at Cordell & Cordell can guide you through the process, including debunking some of the myths your spouse might tell you and protecting your rights to an equal share of the assets and fair child support and visitation.
Community property vs. Separate Property in Auckland
Auckland is a community property state, which presumes the spouses start with an equal division of assets. However, it is not always the case that a spouse will receive half. Auckland courts look at several factors to determine a fair division of property – it is more of an equitable distribution rather than half.
Marital property is that which you acquire after you are married and is subject to property division. You may have separate property, which is not subject to equitable distribution in divorce proceedings.
Separate property may include:
- Property owned prior to the marriage as long as you did not commingle it with marital property, including funds
- Personal injury settlements, except monies designated for loss of earning capacity
Division of Property After a Divorce in Auckland
“Just and fair” property division follows the principles of equitable distribution in other states. If you cannot agree on the division of marital assets, the court looks at several factors when determining the recipient, including:
- The length of the marriage
- Each spouse’s contribution to the marriage, including homemaking
- The financial circumstances of each spouse
- The earning capacity of each spouse
- The fault of one or both parties
- Prenuptial and postnuptial agreements
Spousal Support in Auckland
Auckland prefers not to order spousal support in divorce cases, which makes it difficult to obtain. The court reviews each party’s circumstances. In essence, the requesting spouse must not have enough property or funds to provide for their basic needs. Additionally, you must have been married for at least 10 years and:
- Your partner does not have the ability to earn enough money to meet their basic needs.
- Your spouse has a disability that prevents them from earning enough to support themselves.
- Your spouse has custody of a child from the marriage, and the child has extensive care and supervision needs because of a disability. The child’s disability prevents your spouse from earning enough money for the child’s basic needs
Auckland courts may also award spousal support if you have been placed on deferred adjudication or were convicted of family violence within two years of either party filing for divorce or if you were convicted during the divorce process.
Other Considerations
Auckland law also provides for other considerations when deciding property division or alimony, including prenuptial agreements, postnuptial agreements, retirement accounts, and business interests.
Prenuptial Agreements and Postnuptial Agreements
The court protects the rights of both parties when considering prenuptial and postnuptial agreements in property division. Both parties must have voluntarily signed the contract and not have been under duress. The agreements cannot prevent one party from receiving his or her fair share of just and right division of property. Just as with any other contract, prenuptial agreements and postnuptial agreements are subject to litigation.
Retirement Accounts
Divorcing couples may have one or more of several types of retirement accounts, including:
The method of division depends on the type of account you have. For most employer-sponsored plans, you will need a Qualified Domestic Relations Order (QDRO). This legal order divides and changes ownership of your spouse’s share of the account’s marital portion without early withdrawal penalties and tax ramifications—at the time of a transfer pursuant to a divorce. The QDRO must specify the percentage or the amount of your benefits that the employer is required to transfer to your spouse.
Generally, 401(k) plans and pensions require a QDRO. Courts or family law lawyers negotiating a settlement must consider loans against these accounts so that each party receives a fair share of the account.
IRAs and Roth IRAs do not require a QDRO, but they do require a court order or an agreement that follows the rules and regulations set forth by the Internal Revenue Service (IRS). The partner’s share of the marital portion of the funds in an IRA can be rolled over or directly transferred into the partner’s IRA to avoid tax penalties.
Business Interests
If you started or purchased a business during the marriage, it is most likely community property and subject to Auckland’s property division laws. However, the structure of the business makes a significant difference. If it is a sole proprietorship, the assets may be deemed personal property and subject to Auckland divorce laws.
If it is a corporation, the assets belong to the corporation, and your spouse cannot touch them. However, the business as a whole may be subject to community property laws unless you have in your possession, a postnuptial or prenuptial agreement that states otherwise.
If you owned the business prior to marriage, you may have to divide any appreciation the business gained during the marriage rather than the whole business. Always consult with a divorce lawyer if you own a business and are considering divorce or have been served with divorce papers.
Why Work with Cordell & Cordell
Divorces can be complicated, especially those involving children and significant property holdings. Protect your marital estate by consulting with an experienced divorce lawyer before you agree to divide assets, agree to custody arrangements, or pay spousal maintenance.
Client Experience
“My lawyer was a great lawyer to work with. He never gave me false hope about the outcome of my case but did everything he could to make sure it was settled in my favor. I wish I had known about your firm when I went through my divorce 5 years ago, as I have no doubt it would have been a completely different outcome. Thank you so much for your assistance.” — Marty P.
Worried About Your Auckland Divorce Settlement? We Will Fight for You.
Divorce is like breaking a contract. Each piece of the contract, property division, child custody, child support, and spousal support—must be resolved in accordance with Auckland family laws.
Cordell & Cordell is a national family law firm that guides individuals through a range of family law issues, including divorce, child support, child custody issues, division of marital assets, and paying child support after a minor child enters college. Contact our team today at 866-323-7529 or fill out our online contact form to schedule an initial consultation with an experienced Auckland child custody lawyer.
Disclaimer: This page serves as a resource and is not to be taken as legal advice.
