DIVORCE AND SUPER.
The court will require the following documents when considering superannuation.
The trust deed and all its amendments. It is important that to keep up to date records and make sure the most up to date copy is presented to the court.
The last three years of financial statements. Rule 12.02(b)(ii) of the Family Law Rules requires financial statements of the most recent three years.
Member statements. The court may require to establish what the contributions made to the superannuation fund where at the start of the relationship. Keeping good records for the last five years is important, this will include the financial position of the fund, minutes of trustees meetings, records of all changes of trustees and members, written consent provide by trustees over the last 10 years. It is a good idea to understand the importance of keeping your records in a safe place for at least 10 years by both all trustees and also advisers.
Valuation of Superannuation assets.
Self managed super funds are exempt from the methods presecribed in the Family Law(Superannuation) regulations 2001. Because there is a close nexus between trustee and member, being the same person in an individual fund and a director of the corporate trustee then the assets are capable of being valued in accordance with the standard principles of other property under the Family Law Act 1975. The valuation of self managed super assets are at the date of the hearing. Therefore it may be imperitive to consider all the implications of keeping superannuation assets in growth assets or unlisted assets that are subject to volatility.
How do you remove a member/trustee from a self managed super fund after the agreement has been reached.
In some cases members may want to retain certain assets in the event of a breakup and you will need to take particular notice of the trust deed and what it says. For example the deed may have a provision that says"The trustee upon receiving a written request from the member transfer the whole or part of the members benefit to another regulated superannuation fund". The member may set up another self managed super fund and have the assets transfered in specie. Capital gains tax is not always payable because it is subject to a splitting order that requires the trustee to observe the obligations under the Family Law Act 1975. The court has two orders at its disposal. It can allocate a base amount or a percentage. Both orders are orders to split payments.