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What am I entitled to if I divorce my husband or wife?

Do you think you might be entitled for Legal AID?

One statement that comes up very frequently when people feel they have no option left but to divorce their spouse is, “I wasn’t in any way to blame for the relationship ending, so therefore I must be entitled to a lot more than them, right?”

Unfortunately, as some people soon discover to their disappointment, that is not how it works. This article will explain the principles that the family courts consider when it is left to them to decide who should have what in a divorce, and therefore what divorcing couples need to think about and focus on when negotiating a settlement out of court.

Our blog article here goes into more detail, but here are a few general things you should try and think about before you get into detailed discussions, either direct with your ex or through mediation.

A fair settlement

The shortest answer to the question of what someone is entitled to when they divorce is, “A fair settlement.” The arguments about “I’m going to take her/him for everything she/he’s got,” are really only for TV dramas or multi-millionaires. For the vast majority of people working out their settlement when going through a divorce, the question to focus on is, “What’s fair under the circumstances?” If the courts are left with making the decision, both parties rarely end up feeling satisfied about the outcome, and sometimes neither or them do.

Take the emotions out of the discussion

Sometimes the financial situation between you is very straightforward and it is easy to see what a fair settlement is. For example, if you do not have children, you rent your property, you both work full-time and are on similar salaries, and you both have similar levels of savings. You separate, rent a property on your own that you can afford on your own salary, keep your own personal possessions, share joint possessions evenly and move on with your new life.

However, it is often not that simple. There is usually some level of imbalance between your individual circumstances.

It is extremely difficult to discuss financial settlements rationally with your ex-partner when you are both angry at each other and communication between you is often at a low point, and maybe trust between you has broken down. That is why mediation is usually the best way to talk through these issues in a non-confrontational way, without emotions getting in the way, and focusing on what each of you needs moving forward and what a fair way to even out any imbalances is.

Children first

When there are children in the relationship – whether they are from your current relationship or a previous one – the number one priority for the courts when looking at a financial settlement is the needs of the children. This might mean that the parent who the children will be mainly living with will need a bigger house than the other parent, if there is enough equity in the property. For example, if the parents have a boy and a girl, they need a bedroom each. That means that one parent will need a larger share of the money from the sale of the property to be able to afford a suitable house for the children. But, of course, the split of assets has to recognise that both parents need to be housed, not just the one looking after the children.

What does each need (rather than demand)?

The reality is that people’s standard of living is likely to change quite significantly when they divorce or separate. If the couple do not have children, they might have got used to living in a spacious 3-bedroomed detached house with a garden. But what they actually need moving forward is something much more modest – a 1-bedroomed flat, for example.

Earnings potential, ages and special circumstances matter

When looking at any question of maintenance payments between the parties, several factors have to be taken into account.

The first consideration when it comes to maintenance, again, is the needs of the children. One parent often has to remain at home, or can only work part-time, while the children are younger. It would normally be considered fair and reasonable for the other party to pay child maintenance to contribute to the costs of raising the children, usually until they are 18 years of age. Know more about when does child maintenance stop in our blog.

The next consideration is if spousal maintenance is appropriate, and if so, how much for how long. If one parent has remained at home or reduced their hours to part-time to raise the children, that parent’s earnings potential needs to be considered. The courts are likely to consider that as part of a fair settlement, both parties should aim to be financially independent in a reasonable time frame. So, it might be the case that the parent who has been mainly looking after the children at home can start to increase their hours as the children move to secondary school and return to full-time working, and therefore earn enough to fully support themselves, within a timeframe after that. So spousal maintenance might be fair and reasonable for a limited amount of time to help bridge that gap, without one party being left with substantial, open-ended maintenance obligations.

Age might need to come into the considerations, particularly if there is a significant difference in the couple’s ages. If one person is older, it might affect their ability to get a mortgage, for example, or it might limit their potential to build up sufficient pension provision before retirement age.

And other special circumstances might prove significant in deciding what a fair and reasonable settlement should be, for example if any of the parties or the children have specific health needs or conditions.

Other assets, including pension savings

Private pension savings are often the most significant class of other assets that need to be taken into consideration. They are usually considered part of the marriage assets and a fair and reasonable way of dividing the value needs to be agreed. The major difference between pensions and most other assets is that pensions can only be turned into cash or income at a time in the future – possibly many years into the future.

Again, sometimes it is a simple matter to work out how to divide the pension pots up if both parties have similarly valued pension pots – each would retain their own pensions in full. The difficulties come where on person’s pension fund is worth significantly more, particularly where the other person has not been able to build up their own pension enough during the marriage due to reducing their hours or stop working to raise the children. A reasonable and fair way to divide the value of pension funds to ensure each person has a reasonable standard of living going into retirement can be a very difficult calculation to make, and can be influenced by how other assets are being divided, particularly if there is a big disparity between the amount that each receives from the family home.

Other assets also include the value of businesses if one or both of the parties own their own business or inheritances that one or both people might be due at some time in the future.

Conclusion

People are entitled to expect a fair financial settlement when they divorce – and that applies equally to both parties. However, what a fair financial settlement actually looks like depends entirely on your individual circumstances. What looks fair for one divorcing couple will look very different to what looks fair for a different divorcing couple. This article goes into much more detail.

Talk to one of our friendly and experienced team to find out how Direct Mediation Services can help you and your ex work out a fair and reasonable financial settlement without having to go through all the stress, cost and anxiety of a contested court process.


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