I help with the financial aspect of divorces every single day. I have clients whose needs and asset base range from the very modest to the extremely wealthy. Whatever the amount in the pot, one question that always comes up is… How much am I going to get?
Here’s eight things you need to know about what will be taken into consideration when dealing with finances on divorce
The court’s first consideration is always the children. Be warned though, the court is talking about children under 18. Your son, who is 26, still living at home, eating all your food and continues to be dependent on you, might still be your little baby, but for these purposes, will not be counted.
Income, Earning Capacity, and other financial resources
How much you earn each month is going to be taken into account. You would be surprised how many people suddenly experience a huge drop in income as soon as financial proceedings start. My advice to you is to be honest! Any solicitor or barrister worth their salt will likely cross examine you to within an inch of your life on how, why and when your income dropped. Even if you have stopped earning for the time being, the court will still consider your earning capacity in the future. If you were earning £100,000 per year as a banker before you lost your job, the court is likely to consider you can earn this in future too. Actual earnings are just as important as your earning capacity. If you really have lost your job and can’t find a new one, keep copies of all of the covering letters you send out, your CV and the responses you have received. You’ll be thankful for that in the long run.
Financial needs, obligations and responsibilities
By this the court means what you actually need and NOT what you want. Usually there’s not enough to go around and so demanding that you have a five bed house with a garden, home gym and carriage driveway is not going to fly if there’s only enough in the pot for a three bed semi. Be realistic and reasonable and you are more likely to be able to get a court to make an order which will allow you to get what you really NEED.
Standard of living
If you’ve been (un)lucky enough to be one of those people who take three hour lunches at Fortnum’s courtesy of your partners Black AMEX and have jetted off on holidays to the Maldives, showered with diamonds and roses every five minutes, have never worked and have a brood of children schooling in one of Britain’s finest Boarders – the chances are that the court will find that this should continue, if only for a short period of time (if there is enough in the pot to accommodate it and if the marriage has been long enough). If you’ve had an “average” standard of living, then it’s unlikely that this issue will have a great impact on the proceedings.
Age of each party and the duration of the marriage
Generally, the longer the marriage, the more likely it is that the assets will be divided equally. So if you have been married for, say 25 years, and you decide enough is enough, and you happen to have built your empire together, the chances are, a judge will split things down the middle. If it is a very short marriage, then a judge will likely order that both parties should leave the marriage with what they came into the marriage with. However, much of this will have to be considered in light of the other facts set out in this article.
Physical or mental disability
This will only be relevant if you have a disability which creates a “need” within the marriage. For example, you may have an argument that you need more funds from the matrimonial pot to pay for specific alterations on a property so that your needs are met. Your disability may also mean that you are unable to work which may warrant spousal maintenance for a period of time.
Contributions of which each of the parties has made or is likely to make in the foreseeable future
To the mothers (or fathers) who heroically gave up their careers to look after the tiny terrors we call children, I come bearing good news. The contribution to the family of looking after them, trying to remove caked-in cheerios from your hair, wiping up copious amount of spilt yoghurt and stepping on Lego without shoes on, is seen as EQUAL to the financial contribution of the spouse who went out to work and had a (quiet!) life. Things get a little more complicated when there were very unequal contributions and this will undoubtedly need specialist advice.
Conduct of each of the parties
This is almost never taken into account because the conduct has to be very serious. Your wife calling you names for leaving your socks by the wash bin is NOT enough. Husbands who have affairs… is also not enough to constitute ‘conduct’. Serious physical injuries or significant financial misconduct might be considered enough, in the most serious of circumstances.
So, as you can see there’s a lot to think about when dividing up the assets and it’s never really as easy as you first think it will be. Often, the cases where there are the fewest assets are the hardest cases because there is simply not enough to go around.
There is no magic formula to tell any client what they are going to get. The best any solicitor can do is to give you a range of what you might expect to receive. However, much is going to depend on the financial disclosure you and your spouse give and how honest they are about their situation….which is a whole different kettle of fish….and a subject which I shall pick up another time……
Loretta Orsi-Barzanti, Head of Private Family Dept.
Posted on Wednesday, 22nd February 2017