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As part of the divorce or separation process, it is advisable to resolve financial issues so that you and your partner can be clear about your respective financial arrangements for the future.
Unfortunately there is no set of tables by which you can calculate how a court will determine financial issues between you. Our experience and expertise will take you through the statutory factors the court must take into account in making its decision to work out how each is likely to apply to your circumstances. In brief, the factors are as follows :-
- income, earning capacity, property and other financial resources now and in the foreseeable future
- financial needs, obligations and responsibilities now and in the foreseeable future
- standard of living during the marriage
- ages of parties and length of marriage
- physical and mental disabilities (if relevant)
- contributions made or likely in the foreseeable future (including those made by looking after the home or caring for the family)
- conduct (if relevant)
- the value to each spouse of any benefit (for example a pension) that either spouse would lose because of the dissolution of the marriage
We can advise you upon appropriate maintenance, capital and pension provision and whether a clean break would be appropriate.
Getting the right financial advice
The court can take a very wide range of factors into account in determining who gets what. It is our job to advise you as to the court's likely view and to negotiate the best financial settlement for you, ideally without going to court. This will save you time, money and stress. When agreement cannot be reached, we will apply to the court for an order to resolve the issue.
It is very important that you get the right financial settlement. For many it is the biggest financial deal of their lives and you need expert guidance to ensure you get what you are entitled to. Some of the issues which regularly emerge are as follows:
Separation means two homes are now needed instead of one, and obviously this can have dramatic financial consequences. Where children are involved, the main carer will require sufficient accommodation for their upbringing. We can advise you on all these issues through our knowledge of the law and our extensive experience of the factors the court are going to consider important. It is vital to have good advice to protect you as to where you are going to live.
We will need to consider the following issues: Who will live where? In the event that you own private accommodation, should it be retained by one spouse, and the other spouse obtain an alternative? How can accommodation be afforded? Who pays the respective household costs? Alternatively, should the matrimonial home be sold and, if so, what becomes of the net proceeds of sale?
The court also has the power to order one party to pay the other a lump sum. Depending on the level of savings and policies, a lump sum payment can be an important order to obtain to ensure that a deal can be satisfactorily and fairly worked out. The court also has power to transfer assets from one or joint names into the name of another or for sale of specific assets.
In determining who takes what, it is important to remember that debts can accrue either to individuals or jointly, eg mortgages, bank loans. Those contractual liabilities may extend beyond divorce and any financial settlement, so consideration must be included as to who will end up paying.
There will be instances where you and your spouse (we could put the word 'partner' in brackets afterwards) are in business together or one of you owns or has an interest in business. This can include: partnership, sole trader or limited company. We will consider whether the business has a commercial value that should form part of the pot (do we want to include assets/settlement in brackets?) to be divided.
We will also consider issues such as whether it is appropriate to instruct an accountant to value the business, its income potential and liquidity. Also whether there is a need for the business to be sold, or its value set off against other assets.
There have been a number of changes in the way pensions are treated in divorce over the course of the last few years.
It is often the case that one spouse has a substantial pension entitlement and the other little or nothing. Nowadays pension earmarking and pension sharing orders are available to the court in order to try and compensate a spouse with lower provision. It is vital to consider your financial future within divorce and pension can be crucial to this.
Either spouse may be entitled to maintenance payments from the other. Typically, orders are for a fixed period of years or until the payee remarries, cohabits for 6 months or dies. Such maintenance is subject to variation in the event that there is any significant change in financial circumstances.
This is usually dealt with through the Child Support Agency (CSA) under the auspices of the Child Maintenance & Enforcement Commission (CMEC) but in certain circumstances child maintenance can still be ordered by the court.
If you are receiving social security benefits (e.g. income support, family credit or disability working allowance) you must apply for an assessment by CMEC, the statutory authority for the assessment and monitoring of child maintenance.
Many parties want to acquire a clean break from any financial deal. This means that their spouse cannot make further application against them during their lives or upon their death against their estate, once the financial deal has been completed. A clean break is only available through a Court Order. Again this is something you need clear advice upon.