Divorce settlement what elements are looked at to determine the final settlement
An agreement can be reached either by negotiation between the parties and their family law solicitors, or through the court process if necessary. The courts will assess how any capital should be divided as well as whether or not ongoing income should be shared.
The following factors will be taken into account:
- The length of the marriage
- The current earnings of each party
- Children – their financial needs and any other factors that may affect their future well-being
- The possible earning capacity of each party in the future
- The standard of living the couple have enjoyed during the marriage
- The assets of each party (including pensions)
- The financial contribution that each party has made to the marriage
- Other, non-financial, contributions that each party has made to the marriage such as caring for the children and running the house
Family Law Solicitors
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It is necessary to go to court to reach a financial settlement?
No, it is possible for a financial settlement to be negotiated without going to court. This can be done between the parties and their solicitors. It will help reduce the legal fees and court fees incurred by both sides.
When an agreement is reached negotiations outside of the court, it will be sent to the court in order for it to be checked to ensure that it is reasonable. The agreement is then approved by them court to make it a legally binding order.
While the majority of divorce cases can be agreed this way, if an agreement cannot be reached then it will still be necessary to go to court to achieve a financial settlement. The disadvantage of the court ruling on a settlement is that an element of control is lost by both parties with regards to the final terms of the settlement.
What is a clean break divorce settlement?
If no financial commitments between the parties remain in place after a divorce, e.g. ongoing spousal maintenance, this is known as a clean break.
In cases where ongoing spousal maintenance would normally be paid a clean break can still be achieved. This can happen if enough financial assets exist to enable the liable party to transfer a suitable amount that covers the value of any future maintenance.
It is not possible to achieve a clean break in terms of financial responsibility for children. As a clean break is only possible in relation to your spouse and not your children.
Who pays the legal costs in a divorce settlement?
Both parties will have their own solicitor and will be responsible for their own legal costs. In some circumstances it may be possible to include the payment of legal costs as part of the financial settlement if this is included in the initial negotiations.
What happens to the family home in a divorce?
The family home will be treated as an asset of the marriage and will consequently be included in the financial negotiations.
Divorce settlement negotiations start from the point of an equal division of any assets. If one partner wants to remain in the family home they will need to have enough financial resources to be able to offset the value of their spouse’s share of the home and then transfer assets of that value to their ex-spouse.
If not enough financial resources are available to achieve this then the family home may have to be sold so that the equity contained in it can be divided between the parties.
When children are involved, it can sometimes mean that one party can stay in the family home with the children. The courts always place the highest level of importance on the needs of any children involved. However, the courts will not allow an unfair settlement to either party, so this type of arrangement will depend on each party’s financial situation. If the needs of the children mean one party must stay in the family home, then the parent who leaves is likely to retain a financial share of the home. This share will then be realised at an agreed future date and on the eventual sale of the property.
What happens if the divorce proceedings are defended by my spouse?
Defended cases are extremely rare as people commonly recognise that there is little point in trying to keep a marriage alive when the other person considers the relationship to have ended. It can also be very costly, so in the majority of cases it is not advisable.
If a defence is filed there has to be a hearing where the judge will decide if there is sufficient evidence for divorce or in the case of a cross petition (where the other spouse has declined the reasons for divorce and put forward their own reasons) whether either or both have adequate grounds for a decree to be granted. Usually a draft petition will be sent to the other party for comment before it is sent to the court, in the hope that an agreed petition can be lodged instead.
Will my legal rights be affected if I move out of the family home?
Generally a spouse will not be penalised for moving out of the family home in terms of the financial settlement. Although your legal rights are not affected by leaving the home, other factors may be affected. For example you are unlikely to have any control in the sale, your spouse may deny access and you have the expense of alternative accommodation.
If you are considering moving out of the family home it is always advisable to take legal advice from a specialist family solicitor first.
What is the cost of legal fees for a divorce?
The overall cost depends on a number of elements. A straightforward action with no complications will cost less than one where disputes about finances and children are involved and complex negotiations are required.
Can I claim my own adultery as a reason for divorce?
You cannot claim your own adultery as a reason for divorce. If this is the case, you would have to ask your partner to divorce you on this basis. Alternatively, you can petition yourself based upon a different fact.
How long do we have to be married to get a divorce?
The law states that in England you must have been married for at least one year before you can start the process.
How long does it take to complete a divorce?
If things are straightforward a divorce takes between 4 and 6 months. A lot depends on if your partner responds quickly when they receive the divorce petition. The divorce may also be delayed due to the separation of matrimonial assets, as it is best to resolve these matters fully before you apply for the decree absolute which marks the end of the marriage. The divorce could also be delayed by problems which concern the arrangements for children.
In general, the more you and your partner can agree on, the quicker the divorce process will be.
Do I have to go to court to obtain a divorce?
In the divorce process court hearings typically arise when an agreement cannot be reached on issues such as arrangements for children and finances.
If the divorce is straightforward and both sides are able to reach an agreement then you will not have to go to court.
Why can’t you go to court retaining your existing lawyers if I and my partner/spouse fail to reach an agreement?
The reason that collaborative family law has been successful and developed (in other jurisdictions) is the fact that the lawyers are disqualified from acting for the client should collaboration fail. The disqualification agreement means that all the parties, including the lawyers and clients, are attempting to achieve settlement without threatening or being subject to the threat of court proceedings when things become difficult.
You are collaborating without the background of potential court litigating, and lawyers are encouraged to work together in assisting you to reach settlement.
By agreeing at the outset not to go to court, your partner and the lawyers can be encouraged to reach creative settlements.
What if some time after issuing a settlement agreement in the collaborative law process, I discover that my partner has failed to disclose relevant information?
The settlement agreement reached during the collaborative family law process is no different from any other negotiated settlement. If the outcome of the settlement would have been different if the information had been available, then it is open to you to seek to overturn the agreement, even if it has been confirmed by a court order.
What happens if my partner/spouse does not give full and frank financial disclosure or undertake the collaborative family law process in good faith?
Under the terms of the collaborative agreement, the lawyer must withdraw from acting from their client if he/she has withheld or misrepresented information intentionally or is participating in the process in bad faith. Likewise, it is open to your collaborative family lawyer to advise you to withdraw from the process if they do not consider that your partner (or indeed their lawyer) is keeping to the terms of the agreement.
If you consider that your partner will not be honest during the collaborative process, then collaborative family law is unlikely to be a good choice for you.
What kind of information and documents do I have to provide in collaborative family law negotiations?
You and your partner sign a participation agreement which provides full and frank disclosure of all documents and information that relates to the issues. Disclosure is made at an early stage.
What is the difference between collaborative law and mediation?
- In mediation the mediator is prohibited from giving either of you legal advice and cannot assist you in advocating your position. A mediator is neutral;
- The mediator is there to facilitate you and your partner and has a duty to advise you each to take separate legal advice, either during the process or after;
- Any settlement discussed during mediation is only binding once each of you have had the opportunity of taking separate legal advice and have transferred the agreement into a separate consent order of the court. The mediator cannot prepare the court documents for you nor finalise the process;
- Provided agreement is reached your collaborative lawyer can act for you in the divorce and prepare the court papers to obtain the consent order;
- Lawyers are rarely present during the mediation sessions and their advice may be given too late to assist in the process;
- In collaborative family law, you each have your own lawyer throughout the process advising you and advocating on your behalf. If you and your partner lack negotiation skills or financial understanding or feel vulnerable when in the sole presence of the other party, collaborative family law could be preferable to mediation;
- Mediators may still have a role in the collaborative process if you and your partner wish to consult a mediator regarding an issue. Collaborative lawyers can assist you in finding a suitable mediator.
Is collaborative family law the best choice for me?
Collaborative family law is not for every client or indeed every lawyer but it is worth considering if some of the following is important to you:
- You want a dignified non-aggressive resolution of the issues;
- You and your partner have children and wish to reach a resolution by agreement with their needs and interests being your priority;
- You do not wish to incur the costs and animosity generated by court proceedings;
- You would like to keep open good relations with your partner in the future;
- You and your partner have extended family and a number of friends to whom you would both wish to remain in contact in the future;
- You value retaining control over decisions about your financial arrangements or arrangements in relation to the children but with advice from experts;
- You do not wish to 'hand over' decision making to either your lawyer or to a court;
- Your main aim in the process is not to 'seek revenge' on your partner;
- You need the assistance of a lawyer to help you negotiate in face to face meeting.
What is a 4-way meeting?
- A ‘4-way’ meeting is where you and your partner sit in a meeting with your collaborative lawyers to discuss the issues you wish to resolve;
- An agenda is set before the meeting by your collaborative lawyers taking into account the issues you both wish to discuss;
- You and your partner have a duty of full and frank disclosure. You both provide all documents within the process;
- Correspondence between lawyers is discouraged, thereby keeping costs and acrimony to a minimum;
- Discussions focus on the needs and interests of you, your partner and the children;
- Meetings are arranged at the start of the process without you having to wait for court dates. Provided all the participants enter the process in good faith, the process is faster, cheaper and less acrimonious than the court proceedings to reach a resolution;
- You and the lawyers can work as part of a group of professionals, including counsellors, mediators and child and financial specialists to draw on the skills of other professionals to assist you and your partner in the process;
- For issues requiring expert opinions (for example an accountant to give tax advice or value a business) the collaborative team will normally jointly instruct independent consultants, following discussions with you at the ‘4-way’ meeting.
What is collaborative family law?
- You and your partner retain separate specially trained lawyers who will assist you in resolving issues without going to court;
- Your collaborative lawyer acts for you, providing legal advice and guidance throughout the process, but working with your partner and his/her lawyer as part of a team to help achieve settlement;
- You, your partner and your lawyers agree to work together in a respectful, honest and dignified way to try and reach settlement without threatening to go to court;
- You sign an agreement disqualifying your collaborative lawyers from representing you at court if the collaboration process breaks down. Neither of the lawyers, or their respective firms can then act for you although they will still be bound by confidentiality about any negotiations which had occurred. You would need to instruct new lawyers to proceed to court;
- Issues are discussed and hopefully resolved in ‘4 way’ face to face meetings between you, your partner and your lawyers. Settlement discussions take place in your presence which helps ensure that you and your partner remain in charge of the process. The process thereby helps improve future communication, this is particularly important when you have children.
What is the aim of collaborative family law?
To assist you both to resolve all matters arising out of your separation in a dignified and respectful way for the benefit of the whole family.