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What is the best way to deal with financial issues resulting from divorce?

The breakdown of a relationship can be a hugely stressful time, particularly when the thorny issue of money and property needs to be discussed.

Issues relating to finance are often complex, which may mean the process of dealing with a financial settlement seems overwhelming.

Here, Mander Hadley’s family law expert and Senior Associate, Stuart Daniel, provides the answers to some of the most common questions couples ask when they consider the division of their assets:

Should I negotiate?

The first and arguably most important thing to consider is the negotiation process. Financial settlements are not necessarily black or white – there is always room for negotiation.

Negotiations do not have to be acrimonious and can actually avoid the unnecessary expense of contested court proceedings, not to mention the extra stress, and uncertainty.

If negotiations are ultimately successful it is important to understand that a court order will still be needed to achieve finality. A negotiated settlement can be turned into an agreed form of order (a “consent order”) for submission to the court for approval.

What is the best way to negotiate?

The best way to negotiate will depend on the needs of you and your former spouse.

You could:

  • Seek an amicable agreement between yourselves and then ask your solicitor to draw up a consent order
  • Instruct a solicitor to negotiate on your behalf with a view to agreeing on the terms of a consent order
  • Seek mediation – where a neutral mediator assists you and your spouse to reach agreement between yourselves
  • Attempt alternative dispute resolution (“ADR”) such as collaborative family law – a series of meetings attended by you, your former spouse and solicitors where everyone works to reach an agreement, or arbitration
  • Issue court proceedings. In many cases contested proceedings are perhaps best avoided, however, they are sometimes necessary and may be the only way to secure a fair settlement within a reasonable timescale

Will the court automatically endorse any agreement reached?

If a settlement is agreed by both parties it is usually endorsed by the court unless the District Judge who considers the agreement is concerned that the same is not fair or is technically flawed in some way. It is important to understand that Judges do not simply “rubber stamp” agreements. It is wise to obtain specialist legal advice in respect of any proposed agreements to ensure that they are capable of being approved by the Courts and that a Judge considers them to be fair.

I’m worried my former spouse might try to sell our home and make me homeless – what can I do?

If you are living in a property that is owned by your spouse, your ‘Home Rights’ can be registered against it – this protects your right of occupation warning off any person that it might be sold or transferred to.

If there is a real risk that your spouse will try to put any other property beyond the reach of the court, for example by moving ownership overseas or transferring it to someone else, the court can make orders to prevent this.

Do I have to tell my ex about all of my assets and income?

In a word, yes! It is really important that both parties completely disclose their respective financial positions – both to each other and to the court.

You cannot negotiate a financial settlement until you know what you are negotiating over and a court will not sign an order if the full facts have not been disclosed.

What assets do I need to disclose?

Savings, investments, any properties owned jointly or solely, pension pots and if one party is a business owner, the value of the business too.

However, just because you’ve disclosed all assets does not mean it will be an equal split.

For example, if one party owned a particular asset prior to marriage or if they inherited or were gifted it, it may not be included in matrimonial assets but will tend to be taken into account when considering the overall resources available to their owner.

Do we have to split our assets or income down the middle?

“Equal sharing” of assets and income is only a rough rule of thumb when considering whether any particular division of assets is fair.  In most cases, there are circumstances which will mean there is a different outcome, such as providing sufficient resources to meet the needs of children, especially their housing needs.

I think that my spouse is to blame for the breakdown of our marriage. Can this be taken into account?

Since the introduction of no-fault divorces, ‘blame’ is not apportioned to either party and it forms no part of a financial settlement negotiation.

I stayed at home for most of our marriage to look after our children, while my ex earned all or most of the money. Is this taken into account?

Yes, it is. The law says that non-financial contributions to a marriage count for as much as financial ones and should be treated equally.

Am I entitled to maintenance from my ex?

Where there are children involved, maintenance should usually be paid. The Child Maintenance Service can deal with disputes about payments of child maintenance where separated parents are unable to agree. With regard to spousal maintenance, eligibility will depend on your circumstances. Legal advice should be obtained to ascertain whether there is any merit in a separate claim for spousal maintenance.

Can I make claim against my spouse’s pension?

 It is possible to split a pension fund into two but it is not common. It is a very complex area of law but we can advise if you feel that your ex’s pension makes up a significant part of their assets.

Can I agree on property division and splitting other assets before the divorce goes through?

You can negotiate a separation agreement (sometimes called a “separation deed”) now and, as part of this, agree that you and your spouse will divorce at a later date.

Both spouses should have independent legal advice while negotiating and before signing the agreement or the court may not sign the agreement.

It is not possible to end a parent’s financial obligation towards their children aged under 18. Clean breaks can only take effect between spouses.

Mander Hadley’s family law team have produced a new video explaining financial settlements which is available to view for free HERE.

If you would like to discuss any matters relating to divorce, separation or financial settlements, please get in touch with our expert family law team.

Mander Hadley

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