When we first meet with clients, we commonly get asked what they are entitled to on divorce. Depending on the complexity of the case, this is not always a straightforward answer. However, below are some questions you may be considering if you are thinking about getting a divorce.
How are financial assets split in a divorce?
The courts in England and Wales have a very wide discretion in deciding how a couple’s financial assets are split during a divorce. This unfortunately means that there is no definitive answer to this question, particularly in the early stages. However, the discretionary nature of the law in this area subsequently allows for a vast range of different settlement options depending on the individual needs of you and your spouse on separation.
The aim is to divide the matrimonial assets as fairly as possible and in some cases this can mean an equal division, although there are also many cases where this isn’t necessarily the right or fair outcome. The matrimonial assets comprise assets that have been acquired during the marriage by you and your spouse, such as your family home, pensions and chattels. There may also be non-matrimonial assets to be considered, e.g. inherited assets or assets brought into the marriage.
When making a financial order, the court will take a number of factors into consideration, including the needs of any dependant children, your income and potential earning capacity, your age, current standard of living and the duration of your marriage. For example, if you have dependant children it may be likely that either you or your spouse may need to retain the family home if taking primary care of the children.
Wherever practical, the court will seek to achieve financial separation between you both, otherwise known as a ‘clean break’. However, this is not always possible; your case will be looked at individually and what might be right for one family may not be right for yours. Therefore, it is important to consider carefully various options to meet your and your spouse’s needs, both now and in the future.
How much money will my ex have to pay me?
There are two types of maintenance that your former spouse may have to pay you; spousal maintenance and child maintenance. The two are entirely separate, although it can often be the case that, where there are children, both payments are combined into one payment for simplicity, however the amount will be calculated separately for each form of maintenance.
Spousal maintenance aims to enable the less economically strong party to meet their needs. Therefore, it may be the case that you will be required to provide maintenance to your former spouse, rather than receiving it. There is no set formula in calculating spousal maintenance; the amount will vary depending on what is needed to support the less economically strong party’s lifestyle and needs after taking into account their income and the payer’s own income and needs.
Child maintenance is provided to support the needs of your children and is usually calculated by applying the child support formula. This is based on a percentage of the gross income of the parent with whom the children do not live primarily and the number of nights the children spend with them. Therefore the specific amount will be dependent upon variable factors.
How to protect your assets during a divorce
When divorce becomes inevitable it can be helpful to have an idea of your matrimonial assets and their worth and both your and your spouse’s income respectively. This will help us advise you as to what potential settlement options may be available to you, as well as any possible maintenance claims.
Depending on the complexity of your assets, it may be necessary to seek advice from an independent financial advisor to get assistance in this regard if there are, for example, extensive matrimonial assets. Importantly though, you should always consider getting advice from a specialist family solicitor, such as ourselves, before entering into any financial settlement with your spouse.
What are my rights as a spouse in a divorce?
This will depend on the nature of your case, what matrimonial assets you have and whether you have any children.
In terms of your matrimonial assets both you and your spouse will both have claims on these, regardless of whose name they are held in. This usually includes the family home, chattels, savings, pensions and any businesses interests, amongst other things. Non-matrimonial assets can sometimes be excluded from the overall division, but this will depend on the circumstances of your case.
If you are the less economically strong party you may be entitled to receive spousal maintenance for a period of time decided between you and your spouse or the court. This aims to assist you until you are able to be financially independent and therefore is likely to reduce over time and will stop once financial independence is achieved.
If you are the primary carer of your and your spouse’s children then you are also entitled to receive child maintenance in addition to your spousal maintenance.
If you would like to speak to one of our family law specialists about divorce or other family matters please contact us.