Do Judges Divide A Couple’s Assets Equally On Divorce?

For the most part, very few financial cases reach court because solicitors work hard to negotiate settlements, whether that is with your ex’s legal representative or via alternative dispute resolution. Sometimes, reaching a settlement just cannot be achieved, and this is when parties often find themselves in court. The question that everyone wants answered is how does the court work out what I am entitled to, and will this be shared equally? Here, we discuss the relevant factors.

The children’s ages will also play a role in how the court views future earning capacity. Very young children may restrict the primary carer from increasing their earning capacity for a number of years, given they are now single. However, the court will expect the primary carer to get back into the jobs market as soon as they can.

Financial needs and responsibilities of the divorcing parties

Needs fall into two categories: housing and day-to-day income. These should be determined within the context of the resources available to the parties. The starting point is to evaluate the needs of each party in conjunction with the other factors discussed here. Particular attention will be paid to the needs of the children.

Standard of living enjoyed by the parties

This can be a controversial factor, particularly in cases involving wealthy couples. The courts have earned a reputation for interpreting the needs in this regard, generously.

The age of each party and length of marriage

The older the couple when they divorce, the more their future earning potential is impacted, and therefore considered differently than couples divorcing in their twenties or thirties. Settlements involving older couples are more likely to focus on pensions and investments.

In short marriages, the court will look at each party’s contribution to the overall matrimonial pot. The court also considers whether to make a ‘clean break order’, particularly if there are no children involved. A clean break order allows both parties to walk away from any future financial liability to each other.

If any party has a mental or physical disability

If either party has a disability, it may impact upon their financial needs and consequently their ability to earn income.

Contributions of the parties

This can be both financial and non-financial. The courts have a duty not to put at a financial disadvantage someone who has sacrificed their career for the family. The longer the marriage, the less relevant individual contributions will be.

Conduct of the parties

This is an area that always causes confusion amongst parties. The very fact that one party may have had multiple affairs or had a drug habit or gambling addiction is unlikely to hold any sway with a judge.

Losing a benefit because of divorce

This is generally taken into account in relation to pension benefits on retirement, which can be adversely affected by a divorce.

The most common mistakes spouses make when agreeing to a divorce settlement?

  • Failing to take proper account of pensions – if your spouse has a pension, it is essential you find out the true value, and properly take it into account in the settlement.
  • Attempting to hide assets – it is extremely tempting to downplay assets, but it is a bad idea because the lack of transparency or dishonesty can lead to a financial settlement being open to challenge.
  • Failing to adequately calculate your needs – underestimating your needs can leave you struggling to survive, overestimating it can lead to the case taking longer to sort out than it otherwise would.
  • Not getting your agreement put into an order – you can only be certain that the agreement you’ve reached with your ex is final and enforceable if you get a consent order approved by the court.
  • Falling into the remarriage trap – no, this isn’t a track on the latest Robbie Williams swing album, but it is something to be aware of. The law says that if you have remarried, you cannot apply to the court for financial remedies in relation to your earlier marriage. To avoid falling into the trap, all you need to do is to apply to the court before remarrying. A word of warning, it is not sufficient to simply agree with your ex, you must make sure it is encompassed into a consent order before remarrying.

It can be difficult to predict exactly how a judge will divide a couple’s assets, and given the unpredictability of the outcome, a good family solicitor will always encourage couples to reach an amicable agreement without going to court. Such arrangements can help form a solid bedrock of communication giving you confidence to resolve any issues with your ex that arise in the future.

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