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What am I entitled to in a divorce?
- AuthorClaire Knight
After you have made the decision to divorce, you will be facing a whole new life involving your finances, living arrangements and your children. Your future will depend on the agreements you make with your spouse when you go your separate ways, which is why it is crucial that you are aware of your rights and what you are entitled to regarding your assets. Claire Knight, Associate Legal Executive in our Family Law team, explains more here about how you should proceed and how we can help.
What are marital assets?
When applying for a divorce and making arrangements for your finances, you will regularly hear the terms marital assets or matrimonial assets. Essentially, these are the financial assets that you and your spouse have accumulated during the marriage and therefore need to be shared between you upon your divorce. Examples of marital assets include, but are not limited to:
- Any property you own, such as the family home. You will be required to decide whether one of you will remain in the property, whether you will sell and both look for new accommodation, or whether you will buy them out and transfer the property to the other person.
- Savings and money in your bank accounts. This will include joint accounts and you will need to consider whether the other party will make withdrawals from these in the weeks following your decision to divorce, remembering that bills are likely to come from these accounts.
- Any debts you have, for example your mortgage, loans and credit cards.
- Business assets, even though these may be seen as a source of income opposed to a capital asset.
- Pensions. This is a complex area of financial arrangements and you will need to give due consideration to the various different options involving pensions, which includes offsetting, earmarking or sharing.
- Vehicles and other items within the property, such as furniture.
- Any stocks, shares or investments.
Marital assets differ from non-marital assets, which are assets that were acquired outside the period of the marriage. This does not necessarily exclude them from the financial settlement as it will depend how and when they were acquired and what has been purchased with them.
How are marital assets divided in a divorce?
It’s only natural that you may consider it a fair option that marital assets will be split 50/50 in a divorce, however this is not always the case and you will need expert legal advice to help you understand what you may be entitled to and to manage any negotiations. It is always recommended that you attempt to reach an agreement with your former spouse on such matters amicably, as any lack of agreement could result in you going to Court, which could result in a Judge determining the financial outcome and the decisions made may not suit either you or your former spouse.
When applying for a financial order in a divorce, which will confirm the agreements you have reached, you will be required to disclose all of your financial assets, including your pensions, savings, earnings and property. Once you have reached the decision to divorce, we would recommend you start contacting the necessary organisations to obtain paperwork such as bank statements, pension cash equivalent values, property valuation, outstanding mortgage etc to be able to complete this paperwork as efficiently and accurately as possible.
Once a divorce petition has been issued, either party can proceed with a financial application to the Court. If matters are agreed a consent order cannot be filed with the Court until the divorce has reached the decree nisi stage. However it is prudent to start conversations as early as possible. A financial agreement should always be reached and made legally binding before one of you remarries.
Once you have submitted your financial order, the Court will review the application and take into consideration your needs, those of your spouse and where any children will be living and cared for, and they will be looking to ensure that your assets have been divided as fairly as possible. This will be determined by several factors:
- The age of the parties divorcing,
- The income, potential earning capacity and living arrangements for both parties,
- Arrangements for any children within the marriage,
- Length of marriage,
- Any special needs or disabilities.
It may be a requirement for one party to pay spousal maintenance to the other, which happens when one party isn’t able to support themselves financially following the divorce, for example if one party is the sole earner. The amount that is likely to be paid varies depending on the situation in question and how much is required to support the person who is less economically strong. Child maintenance may also be required, which is dealt with separately and can involve The Child Maintenance Service.
Should I make our agreement legally binding?
Once you and your former spouse have come to an agreement, it is recommended that you have the financial order drawn up for approval by the Court. This will then protect you both in the future should there be any disputes and prevent future claims on your assets.
Even if you do not have any assets to divide, you should still apply for financial order which is known as a ‘clean break order’. This confirms the financial situation of both parties and prevents future claims being made, including inheritance claims in the event of death.
What should I do if we can’t agree on our financial arrangements?
If you’re not able to reach an agreement, Family Mediation would be the next course of action to assist you with your discussions and negotiations to try to prevent having to make an application to the Court. In the majority of situations, Family Mediation is a compulsory step prior to any Court application. A Mediator will determine if your case is suitable for Mediation by attending a Mediation Information Assessment Meeting (MIAM). It is during this meeting that the Mediator will assess whether Mediation could help you reach an agreement with your former spouse and will explain in detail how Mediation works. If Mediation is not suitable, the Mediator will, if you wish, complete the necessary forms which will permit you to make your application to the Court, however if it is suitable then sessions can begin.
Family Mediation is a highly successful method to resolve disputes of this nature, as well as arrangements for children. It allows both parties to voice their views and discuss options in a neutral environment with an independent third party present to assist them. The Mediator will ask you both to gather your financial paperwork know as financial disclosure and explore with you both, outcomes that may be acceptable to each of you.
Claire concludes, “The financial arrangements for your divorce will be dependent on the circumstances surrounding your own personal situation, and so it is never possible to say with any certainty which assets you may or may not be entitled to. Having specific, expert legal advice will allow a legal advisor to review your circumstances, the assets involved and assist you in understanding your rights and what you may be able to receive to support you in your new future. We know that you will be feeling uncertain, but we are here to help.”
To discuss your divorce or financial arrangements with Claire or a member of the Family team, you can contact us today on 023 8071 7431 or email firstname.lastname@example.org.
This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.