What can I claim in a divorce settlement?
A divorce, on its own, does not settle the division of finances; it simply dissolves a marriage. To divide the assets, you’ll need a financial settlement as well. How is this division accomplished? It’s important to note that there is no specific formula to determine how property is divided between spouses. Each marriage is unique, and so is each divorce settlement. However, we can answer some common questions to give you a better understanding of the process and what to expect.
How long does it take to finalise a divorce settlement?
Divorce can be a lengthy process, when it's acrimonious. There's no set timing for the resolution of a financial settlement, but ideally it should be reached before divorce proceedings conclude. If this can be managed, it will prevent complications and delays, which can be costly. When you have agreed a financial agreement prior to the final decree you will be able to get your financial settlement orders at the same time as your final order.
How are assets divided in a divorce settlement?
Different types of assets are split differently.
- Matrimonial assets, those assets accrued during the course of a marriage, will need to be split fairly. It should be noted though, that an equitable split does not necessarily mean 50/50. Matrimonial assets will include things like property, pensions, personal belongings, savings, vehicles, stocks, bonds, mutual funds, and money in the bank. Debts are also considered matrimonial assets and must be split as part of the financial settlement. The goal of dividing matrimonial assets is to find a resolution that is fair and equitable. To do this, the court will consider the relative needs of each spouse, child arrangements, and future earnings, as well as the age of each party, and the standard of living enjoyed by the family prior to the divorce. The conduct of each of the parties may also come into play when the court is determining the settlement.
- Non-matrimonial assets, predating the marriage, are not necessarily excluded from the settlement. If there are any assets acquired after the divorce but before the settlement, those are considered non-matrimonial assets as well. Some non-matrimonial assets can be excluded, but not all. For instance, an inheritance received before the marriage would be considered a non-matrimonial asset, but if it was used to purchase a house or vehicle during the marriage, the purchased asset could be considered matrimonial. This is a complex area and each asset and its relevance in the circumstances of your particular case will need to be considered by your legal advisors in order to consider whether they could be included in your settlement or not.
What happens to the house in a divorce settlement?
Typically, the family home is the couple’s most valuable asset. There are different ways of handling home ownership in a divorce settlement, and the court will decide what's most equitable and fair.
- Sell and share: In this scenario, spouses move out, the house is sold, and the money is split to buy two new properties, if sufficient.
- Buying out: One spouse can buy out the other spouse's portion of the property, thereby becoming the sole owner.
- Transfer of value subject to a charge: Some of the value of the property can be transferred from one spouse to the other. The spouse who moves out of the home would no longer own any of it but would receive a cut if the house is sold at a later date.
- Unchanged ownership: In this case, one partner continues to live in the house, but the ownership of the home remains the same.
- Mesher or Martin order: An option only available in England and Wales, this involves creating a settlement of the property so that the parties continue to own the property but in defined shares, with a deferred sale date, the trigger for which is specified in the order. If the home is subject to a mortgage, there will need to be discussions about how the mortgage is to be paid and, depending on the order that is being sought or agreed, whether it is desirable and/or possible for one party’s name to be removed so that the mortgage remains in the sole name of the other party. If it is a joint mortgage each spouse has equal responsibility for the payments, regardless of the living arrangement. It’s advisable to speak with a mortgage advisor before you make any decision to change the mortgage arrangements.
Does the length of a marriage affect a divorce settlement?
The duration of a marriage is one of the factors that has relevance when considering a divorce settlement. There is no absolute definition of a long marriage, and it is therefore important to get advice on your particular settlement which will be affected by all the circumstances of your case, for example matters such as whether you have children, the size of your assets and your specific needs.
Does having a new partner affect the divorce settlement?
If you form a new relationship before your divorce is made final this can impact on your settlement depending on how settled you are in the new relationship, and whether the relationship changes your financial circumstances. The particular financial circumstances of the new partner may be relevant if this is the case. For example, if you cohabit or become supported by your new partner this may have relevance to your financial settlement. You have an obligation to make full and frank disclosure of your situation, and so you must let the court know if you intend to cohabit. If for example you and your new partner move in together soon after the divorce is final without having stated this at the time of the settlement, your ex-spouse may be able to challenge the settlement. The concern of the court is to determine the divorcing couple’s financial needs and those of their children and the resources that are available to divide between them. It is therefore important to discuss all of the relevant circumstances with your solicitor who can advise you on your position.
Can a divorce settlement be re-opened?
It is extremely rare for a divorce settlement to be reopened. Examples of what may entitle you to ask for it to be reopened are-if there was fraud or fraudulent non-disclosure or misrepresentation of material facts, or inadvertent or negligent non-disclosure of material facts, or a mistake, or duress. You will need to take advice from your solicitor on whether this is relevant in your particular case.
What can I claim in a divorce settlement?
There are so many variables involved in reaching a financial settlement that this question is difficult to answer. You must disclose all of your financial assets, including pre-marital assets, so that the court can determine how best to divide property between you and your spouse. Leaving something out, like a pension you have forgotten you have, from a job you no longer hold, can cause headaches and expense down the line if your ex-spouse alleges that you have attempted to conceal some of your assets. You may be able to protect some pre-marital assets depending on all of the particular circumstances of your case, and it is in everyone’s best interest for you and your ex-spouse to work together to achieve an equitable settlement if at all possible. Competent legal advice is crucial, so do not delay in finding a law firm to help guide you through this process.
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