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Asset valuation and disclosure

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One of the most important steps in the process of dividing your assets is to identify and value the “asset pool”. Both you and your former spouse have a duty to disclose assets that exist at the time of your settlement or assets to which you may have an entitlement in the foreseeable future (such as a deceased estate or compensation claim) and any assets you have disposed of since separation. This includes assets you have purchased after separation as well.

If you have transferred assets to another person as a means of trying to defeat your spouse’s claim, the court has the power in some cases to set aside the transaction leading to the transfer.

What will happen if you fail to disclose an asset? Your spouse may be entitled at a later point in time to ask the court to set aside the orders or financial agreement giving effect to your agreement. This can involve costly litigation and “new” assets acquired after the settlement may find their way into the asset pool.

Generally, assets are valued at the time of their division or settlement between the parties. Sometimes, through negotiation, the parties may agree that it is appropriate to value an asset at a particular point in time, such as the date of separation. However, it is important to remember that you cannot require your former spouse to accept the value of an asset at an earlier point in time simply because valuing the asset at that point will benefit you as part of the outcome.

In some cases, such as establishing the value of real property, like the former family home, you and your spouse may be prepared to accept an appraisal of a reputable real estate agent in your area. However, different considerations apply to an appraisal than to those of a valuation prepared by a registered valuer.

If your matter is before the court and the value of the former family home remains in dispute, then the issue can only be resolved with valuations prepared by registered valuers. In some cases, you and your former spouse may agree to engage the one valuer and that person will become what is known as a single expert.

Superannuation interests can be the subject of complex valuations, and the value is often quite different from the value recorded on a superannuation statement.

It is important to obtain advice about the nature of your superannuation interest and that of your spouse. This does not mean that you have to split those interests but you need to understand what they are worth so that you can negotiate accordingly.

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