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Negotiating the best financial settlement for you
Negotiating a financial settlement during a divorce can be tricky, but not when you have the advice and guidance from MG Legal's team of local Family Law solicitors. During a divorce or separation you will need to reach a formal financial settlement including all assets; property, pensions and savings.
Whilst this may seem daunting at first, MG Legal are here to help you, with the specialist advice, guidance, and care, you need to not only see you through this time in your life, but to make sure that our clients receive the best possible financial settlement in their particular case .
Misconceptions about financial settlements on divorce
Whilst often forgotten by the ceremony, celebration and often religious service, marriage is first and foremost a legal arrangement, and must be carried out in accordance with the provisions of the Marriage Acts 1949 - -1994.
However, whilst the marriage itself is not a contract, the parties can enter into a marriage contract or pre-nuptial agreement to set out the division of assets in the event of the marriage being dissolved. Although the Family Court will now take notice of any pre-nuptial agreement, it is not set in stone that the terms of the agreement will be implemented.
Couples with no or modest assets pre-marriage are not likely to enter into a pre-nuptial agreement, so what happens in these cases and who gets what out of the 'matrimonial pot'.
We should first look at what goes into the 'matrimonial pot'? Initially, all assets, whether in joint names or in either party's sole name, will be considered part of the pot. Arguments can then be put forward as to why certain assets should not be included, whether this is the whole asset or part of it. There will then be further negotiation as to who gets what from the 'pot'.
Many people believe that if you bring the most into the marriage financially you will receive the most out of the 'pot', or that if you hire the 'best' lawyer, you can “stick it to the ex” and take everything - this is often a comment used to try and intimidate the other spouse: 'I'll make sure you don't get anything'. Each of these are, however, misconceptions, as other factors are considered, such as who might have given up a career to look after children, each party's housing and income needs etc. The future of the family is also considered, particularly if there are dependent children or children with special needs whose dependency may continue after they reach adulthood. So, if the youngest child might be, say, only three or four and likely to stay primarily with the mother, the father might have to relinquish the marital home, or wait for his share of the equity, or receive a lesser share from the settlement generally. So, it does not matter how 'good' the lawyer is the Court has certain factors that it must consider in each case.
Another misconception is that the husband has a 'duty' to house the wife and children, and the wife can automatically stay in the house until the youngest child reaches 18. However, if there is sufficient equity in the marital home to rehouse both parties, even if this is simply giving each of them sufficient deposit for a new property, provided they can comfortably take on a mortgage for the rest, then the Court will more than likely order a sale and separate the couple financially rather than have them continue to be linked by a joint property and joint mortgage.
In many a first interview the Client will state that they want what they are "entitled to" . There is no set entitlement to anything. The starting position in all cases is equality but consideration then needs to be given as to whether one party should receive more than the other, ie should there be a 'departure from equality'. The Family Court will be looking for a 'fair' settlement, which does not necessarily mean an equal division of the total assets, particularly if part of the assets includes inherited property or money or pre-marital assets, and as stated above, the Court will look at 'needs' and not 'wants'. As there are many aspects to consider it is often difficult to give a defined answer as to what a Client can expect to receive in the early stages of the case.
It is also important to note that even where a couple has reached agreement as to terms of settlement, if the Court is not happy with those terms, it will not approve them. We would therefore always recommend that legal advice is taken in relation to the division of assets if terms have been agreed directly between the parties or with the assistance of mediation, to prevent delay further down the line if the Court rejects the draft financial order.
In the words of one local District Judge upon being informed that the parties had reached agreement but neither were entirely happy - 'that means the settlement is right'. Negotiation and compromise are inevitable.
One last thing to mention is the belief that a divorce will stop any financial claims automatically. This is not the case and claims can be brought many years after the marriage legally ended. It is therefore recommended that a financial order is obtained in all cases as this is the only way to prevent any further claims whilst the parties are alive or upon the death of either of them.
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We know that the advice given in relation to financial settlement will affect the rest of your life: so we sit and listen, advise as to the options and then do more than any other legal team to get the best outcome in your case. Our expert Family Law solicitors specialise in divorce and financial settlements and their success rates are second to none - read our reviews.
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