This guide helps you to be aware of the various obstacles and how to overcome them.
Some things to consider during a divorce:
- Your Will
- Any pre-nuptial agreements
- Spousal maintenance / child maintenance
- Joint pensions / life insurance policies
- Joint savings accounts and investments
When going through a divorce, many overlook the other matters that do not necessarily get covered in the divorce papers.
For example, you may find that your Will is no longer accurate if it contains assets for your ex-partner. If your divorce has not been finalised, your ex-spouse could benefit from your estate in the event of your death, so it is important to keep your Will up to date from the outset of proceedings, so that it is clear where you stand legally. See our full guide on Wills.
Pre-nuptial agreements are not legally binding in the UK, but they may still be upheld in court by a judge, as long as certain safeguards have been met. These safeguards include both parties receiving legal advice prior to the agreement, plus full and frank financial disclosure. The agreement must also be made less than 21 days before the marriage, and it must not have been signed under duress. It needs to be fair and realistic, and should be reviewed and amended throughout the marriage, especially if children are born.
If you have a pre-nuptial agreement in place and you have not followed these safeguarding procedures, you may find that it is not upheld in court and you may suffer financially as a result, especially if there are large sums of money involved.
If you are unsure whether your pre-nuptial agreement will be upheld in court, our specialist solicitors can look into it for you before it reaches court so you know what to expect.
If there are children involved in the break-up, then you may already be aware of the need to pay child maintenance payments. These cover everyday living costs of your child, if you are not their primary carer, more information can be found in our guide to separating with children.
Even when there aren’t children involved, payments may be made from one party to the other. If, for example, one partner earns a higher income, they may be ordered by the court to pay the other person’s living costs under what is known as a ‘maintenance order’. Also known as spousal support, this can be set for a limited period of time, but may also be in place until one of you dies, or remarries. It may also be changed if circumstances change, such as one of you begins to earn more or if either party loses their job.
It may be possible to ‘buy out’ of the maintenance payments by paying a lump sum to your partner. This can be a complex area, as it is based on rates of investment and income, so it is best to seek advice from a solicitor if you wish to do this.
During the course of a marriage, you may accumulate joint policies that need to be considered when you divorce. This may include pensions or life insurance policies.
When dividing pensions, start by listing all of the pensions you have between you, and get a copy of the rules from each scheme. These may be personal pensions, schemes through work, or an additional state pension. What can be divided will vary depending on the pension scheme itself. It will also vary depending on where you live in the UK.
In England and Wales all of your pensions (not just those during your marriage) will be totalled in value and taken into account, while in Scotland it is only those that were built up during your marriage.
Before you divide a pension scheme, it is best to get advice from a solicitor or financial advisor, so that you are making an informed choice.
Upon divorcing, unfortunately a life insurance policy cannot be split. This means that one of you must take it over, or it will be cancelled. Either one of you or both of you will be left without an insurance policy so you should consider looking into replacing it.
If you receive spousal maintenance, you should discuss the option of taking out life insurance to cover your ex-partner so that you are covered in the event of their death. This may be a policy that pays a lump sum, or pays you an income for a specified length of time.
Joint savings accounts and investments
Couples often have joint savings accounts or investments together. When going through a divorce, these need to be separated, and must be talked about early on. If you wish to close down the accounts, it is best to let your ex-partner know first, and to discuss what to do with the money you have saved together. At the same time, you need to act quickly to make sure that they don’t spend it without your permission, or run up any debts.
Mediation may help you decide the best way to proceed. If you don’t feel you need mediation, you can just shut down the bank accounts. Some banks may require both account holders to be present, but many won’t, so it is worth checking first.
The way you deal with property during a divorce very much depends on the couple. Options might include:
- Selling the home and splitting the proceeds
- Buying out one person and transferring the ownership.
- Where children are involved, one parent stays in the house to maintain continuity. The other parent either gets assets to the value of the property, or the property is sold when the child reaches a certain age/moves out (known as a Mesher Order).
First4Lawyers expert solicitors are here to help you through all these stumbling blocks, and help to make sure your individual needs are taken into account. Contact us for an informal chat about your situation.
Note: First4Lawyers offers this information as guidance, not advice. Before taking any action, you should seek professional assistance tailored to your personal circumstances and not rely on First4Lawyers’ online information alone.
Last updated: November 2017