The Four Steps Involved in Reaching a Property Settlement

 Step One

All of your assets, liabilities and financial resources (such as superannuation and pending personal injury claims) must be valued and totalled. A family lawyer can provide you with a list of what you might need. At the end, we will know what the total asset pool is. A very important part of this process is the exchange of disclosure. You must obtain financial documentation and provide copies to the other party in the dispute.

This is so both parties can satisfy themselves that you can be confident of what is in the property pool and the history of contributions. It is very important that you obtain your disclosure and provide it to your lawyer as soon as possible. One way that costs rapidly increase is if there are disputes and delays in disclosure.

Step Two

The legislation says we must then consider the contributions that both parties made to the asset pool. These contributions can take many forms. It can be paying the mortgage for the property that you live in. It could be paying the food and utilities so as to allow the other person to pay the mortgage. It also includes caring for children, doing the housework and improving and maintaining the property. If one of the parties brought in an inheritance or significant property this may also be taken into account in determining the overall contributions.

Step Three

The third step requires the court to consider the future needs of both of the parties to the relationship. This involves an assessment of their future earning capacity, their role in raising the children, any health matters that could affect their employment prospects. The parent who is going to have primary care of the children will often receive an adjustment in their favour under this step.

Step Four

Step Four requires the court to review the asset pool and the other factors to determine whether or not the settlement is just and equitable. The court must consider that case as a whole. For example, the behaviour of the parties and the existance of a previous informal settlement led the court to consider not making any order in favour of one of the parties in a case that was heard.


When parties decide to divorce it is a very difficult and painful decision. People are often confused and overwhelmed by all the decisions to be made from dividing household furniture to retirement plans to a custody and visitation schedule. To some people, no division of assets seems fair, especially when there has been betrayal or abuse in the relationship.

When the parties fail to agree on these matters this usually leads to a “contested divorce”. A contested divorce is the process of taking an issue to trial and presenting testimony and evidence so that the judge can make a final decision regarding custody, visitation, support and property division.

It is always best if the parties can work together with their attorneys to negotiate a settlement. With the help of a knowledgeable and effective attorney many parties are able to work out a resolution without having to give up all control to the judge.

If you and your spouse are not able to settle your case, you may need to proceed with trial. The first step toward trial is filing an “at-issue memorandum.” This court form gets filed by your attorney and lets the court know where the parties stand in the case. The court then sets your case for a Mandatory Settlement Conference.

The purpose of a mandatory settlement conference is to give the parties and their attorneys an opportunity to meet and discuss the pending issues in the case. When possible the parties will come to an agreement either on select issues or on all issues. If an agreement is reached on all issues then the parties can proceed to judgment.

If the parties are not able to come to an agreement they can ask the court to set another Mandatory Settlement Conference if the parties think they may be able to work things out with some more time. If the parties cannot agree they ask the court to set their case for trial.

If your case is set for trial it is important to have an attorney on your side that knows the procedures and how to work within the system. I limit my practice to Riverside and San Bernardino counties to be more effective in my representation of clients.

If you’re in a divorce and your spouse is being unreasonable and won’t settle or if you’re planning on filing and know it’ll be a fight, contact the Law Office of Erica C. Affinito now for your free initial consultation. I’m not afraid to fight for you.