Your divorce questions answered
A good grasp of where you stand can help you reach the best agreement with your soon to be ex-husband or wife. Here we answer some of the most common questions that may arise when you decide to part company.
Q: I'd really like to move on as quickly as possible. How soon can we get divorced?
A: You'll need to be married for at least a year before you can file for divorce and have sufficient grounds to satisfy the courts. This includes meeting at least one of five criteria.
These are: two years' separation, with both the husband and wife agreeing to a divorce; five years' separation if there's no agreement to divorce; adultery; unreasonable behaviour; and two years' desertion, although this situation is rare. "As long as you can tick one of these boxes you can file for divorce," says Andrew Newbury, partner with legal firm Pannone.
"Unreasonable behaviour is the most common grounds for divorce, but you will have to cite reasons, which will be assessed by a judge."
Newbury says it doesn't matter who did what and, if the divorce is on the grounds of adultery, there's no need to name the other person. "The courts aren't interested; if they had to take all this into account, they'd grind to a halt," he adds.
Q: I'm going to be looking after the children. How can I be sure my ex-partner will support them?
A: The power to determine, and enforce, child maintenance lies with the Child Support Agency (CSA) rather than the courts. "If a couple can agree a figure, and most do, this can be incorporated into the divorce agreement," says Newbury. "If not, the parent who is looking after the children has to go to the CSA."
The CSA uses a set formula to work out what should be paid. This is a percentage of the absent parent's net earnings, depending on the number of children, the number of nights the children spend with the absent parent, and whether there are any other children living with the absent parent.
A calculator is available on the CSA website to help you work out what level of maintenance would apply to your circumstances.
Newbury recommends sticking with the CSA figures. "There isn't much point deviating from these figures too much as the child support element of a divorce agreement is only binding for a year. Once the year is up, either parent can go to the CSA and it will revert to its formula," he explains.
Q: What happens to our home and our other assets?
A: There's no set formula for dividing marital assets. "The starting point in relation to the division of the assets is equal stakes, unless there's a reason not to do this," says Amandeep Gill, associate with legal firm Davenport Lyons. Provision for any children would be an obvious reason for an unequal split of assets.
Shorter marriages can see assets divided differently too. In these cases, the court might only take into account any wealth that has built up during the marriage.
If you're unable to reach an agreement between yourselves, the court will take into account the welfare of any children and then look at factors such as the available assets, needs, resources, the length of the marriage, your ages and your contributions to the marriage.
Q: I gave up my career to bring up the children and run the home. Shouldn't I be compensated for this?
A: Spousal maintenance is commonly awarded in the UK. "Maintenance takes into account the resources and needs of each party," says David Lister, a partner in the family department at Mishcon de Reya. "If one party has given up work to look after children or support their partner's career, this will be taken into consideration."
Although spousal maintenance is usually awarded for life, it can end either at an agreed point or when the former spouse remarries. It does, however, continue to be paid if they move in with a new partner.
Further, if the person paying maintenance dies, their former spouse can lodge a claim against their estate for the maintenance they would have received. These rules only apply in England and Wales. "In Scotland, for instance, the law is different, and spousal maintenance is only payable for a short time," Newbury adds.
Q: Will I have to pay maintenance to my wife forever? Could we negotiate a clean break instead?
A: Clean break is possible. "This does happen, especially where it's a youngish couple who are both financially independent. Then there's no real need for any ongoing support and both parties can go their own ways," says Newbury.
Clean breaks also occur where there's plenty of wealth involved, as one spouse can afford to pay a lump sum equivalent to roughly the annual amount times the number of years maintenance would be paid, which could be based on the former spouse's life expectancy.
"A clean break can be risky for a husband if he pays a lump sum to his wife in lieu of maintenance. If his ex-wife remarries, maintenance stops, but he wouldn't get anything back if he'd paid a lump sum," says Jane Porter, partner and head of the family team at Lester Aldridge.
Q: What happens to my pension? I was the main earner, so it seems fair that my wife takes some of it.
A: For some, a pension can represent a significant part of their assets. In the past, couples would have to hand over other assets to offset a pension, but since December 2000 it's been possible to split a pension, giving each person their own pot.
If a pension split is being considered, then you need to get a financial adviser or actuary to assess the value of the pension. They will then calculate how it should be divided, often giving the woman a larger percentage, as this would enable them to purchase the same pension income as their former husband.
Q: Do we have to go to court? Can't we arrange the divorce without it getting confrontational and expensive?
A: It's possible to oversee the entire divorce proceedings yourself without going anywhere near a solicitor, let alone a courtroom. In many cases, your solicitor can work with you, your spouse and their solicitor to hammer out an agreement that will prevent you having to go to court.
Another option is mediation, where an independent person – the mediator – works with both parties to reach a settlement. But make sure you get someone you trust. "It's important that both parties trust the mediator as they may need to tell you things you don't want to hear," says Sarah Anticoni, partner with Charles Russell.
A newer process is collaborative law. With this, both spouses and their legal representatives agree to resolve all issues in four-way meetings outside of the court process. If this isn't possible, then both parties must sack their solicitors and go to court.
Q: How much will it cost me?
A: Cost is another consideration, and one that might help stop the disagreements. "If it's a relatively straightforward case and both parties reach an agreement, your legal bill is likely to be less than £5,000," says Gill.
"If the financial arrangements are contested and it ends up in court, it could cost £50,000 or more." Doing it yourself can cost less than £500.
Q: Second time lucky... But this time with a prenup?
A: Even if you've experienced a nasty divorce, there's no reason why marriage shouldn't work second time around. But, if you do decide to tie the knot again, you might want to consider a prenuptial agreement.
"Prenuptial agreements aren't legally binding but they are one of the factors that can be taken into account in a divorce," says Jane Porter, partner and head of the family team at Lester Aldridge.
To increase the chances of a prenuptial agreement being used in your divorce proceedings, you and your future spouse need to take independent legal advice a reasonable length of time before your wedding. The agreement also needs to be fair, or the court could decide to ignore it altogether.
It is possible that prenuptial agreements will be given more legal weight in the future. "They're a common part of getting married in continental Europe and we might be brought in line, as the Law Commission is going to produce guidance on them in 2012.
We're already seeing more people considering them as a form of asset preservation," says Amandeep Gill, associate with legal firm Davenport Lyons.
David Lister, partner in the family department at Mishcon de Reya, prefers a post-nuptial agreement. These are drawn up in the same way as prenuptial agreements but after the couple are legally married.
"People get these drawn up if they feel things aren't going well in their marriage. They are the exception rather than the norm, but they're more binding than prenuptial agreements," he says.
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