Split of finances in divorce

(20 Posts)
MirandaWest Wed 30-Jan-13 12:10:49

XH and I will be getting divorced this year - we'll have been separated for two years in April and are basically amicable about the divorce.

Are we able to decide between ourselves how finances will be split or does it have to be decided by a solicitor/court? There is no house and we both have pensions (think mine is worth more than his due to having had one job for about 7 years whereas he had times of not paying into a pension). I am also unsure what is meant to happen about money I have saved post separation - XH has said that he feels it is mine alone but am I meant to give him 50% of it?

I worked part time and then stopped working when the DC were small on the belief that we weren't going to split up so there is a part of me that feels that I could be entitled to a "better" split but tbh there isn't that much money around between us and I'm not sure I want to have a battle about it.

I am going to see a solicitor for a free half hour on Friday so will ask questions then but would like a vague idea of whether what I'd like to do is practical or not first.

XH is keen to not involve solicitors at all - I was hoping to go through a resolution solicitor but XH seemingly has no money to do that. He pays maintenance at the CSA rate and earns a pretty good salary but ends up with no money hmm.

Has anyone used a Wikivorce solicitor? Having heard tales of people spending tens of thousands on solicitors (that would leave me with negative money) I am a bit nervous, but am concerned that a DIY divorce might lead me open to problems in the future. I am concerned about what will happen when he marries his GF (she has two DC as well) and how university etc wikk be paid for but I'm not sure whether those sort of things get written into divorces or not.

Sorry for all that waffle and hopefully someone may have something constructive to say (which will probably be to ask the solicitor on Friday grin)

She70 Wed 30-Jan-13 21:07:47

My husband and I have just separated so we are not at the divorce stage yet but with 2 young dc I needed to get the finances in place so we have come up with an agreement between us and then basically it is being drawn up in an agreement by a solicitor that will go on to become the Divorce Order in 2 years when we divorce.

It has cost almost nothing - the initial consultation for me with the solicitor was £60 - I was with him an hour. I went through everything with him and he wrote to my ex to confirm the details etc. The agreement is now being drawn up and that is going to cost £120. So that's it. £180 in total. Further down the line we will have the divorce costs but hopefully they won't be much as we've already done all the legwork! My husband didn't even get a solicitor. He is now happy with the agreement and is going to sign it as he doesn't want legal costs either.

We had to agree things like split of the marital property, how much maintenance was going to be paid, savings, pensions etc. We haven't gone into detail about who gets what from the house because if it comes to it I'm not that bothered and he can have what he likes.

I haven't thought about things like Uni etc as I'm hoping it will be a joint parental responsibility in the event they want to go. I don't know. Its hard to try and cover every eventuality in life and if you do that you might never get anywhere as it would be so detailed.

We also didn't include access/visitation. Again we are hoping that we can keep it civil and keep the arrangements between the two of us.

The court won't 'tell' you anything unless you ask them. If you can agree what you want and what you believe is fair it won't even get that far which is obviously best for everyone! (except the solicitors I guess smile )

MOSagain Thu 31-Jan-13 15:31:19

What you need is a Consent Order, setting out the financial agreement between you and dismissing all other future claims. No idea what documentation she70 is referring to but find it very hard to believe that would be drafted for £120. A consent order cannot be lodged at the Court until after DN has been pronounced so once you have the divorce underway you can look at getting a consent order prepared.

She70 Thu 31-Jan-13 15:50:21

I am referring to a Separation Agreement. This is what the solicitor advised I can get drawn up so that we don't actually have to go through a divorce yet but we can still sort out the finances. Once signed it is legally binding and sets out the financial arrangements. When we divorce this agreement will become the Consent Order. I looked on Wikivorce and they are pretty similar in price so think it is possible that it can be done for that price. Plus that is what the solicitor told me it would cost.

MOSagain Thu 31-Jan-13 15:53:54

hmm well, unless things have changed since I stopped practicing, it wasn't quite that simple. People would often pay out a few hundred pounds for a SA and then spend considerably more a few years later when the divorce proceedings were issued getting a Consent Order drafted and lodged at the Court. I've recently seen quotes for anything between £500 and £1,000 for a consent order to be drafted and lodged at the Court.

She70 Thu 31-Jan-13 16:27:53

Then I'm in for a nasty shock when I get my bill confused because that is definitely what I've been told the rate is. Fixed fee for initial consultation was £50+vat, for drawing up the separation agreement was £100+vat. No hidden costs. Its going to be interesting to see what the bill actually is!

MOSagain Thu 31-Jan-13 16:36:54

No, you misunderstand. I'm not saying what you have got now is going to cost more than £180, I'm saying that when you divorce, you will almost certainly have to pay out more money for a consent order to be drafted (and of course the divorce petition fee which at this time is £340)

She70 Thu 31-Jan-13 17:10:04

Oh I see. I haven't actually asked about the divorce costs yet. I was just told that as we would already have the "bones" of the Consent Order then it wouldn't cost that much in terms of solicitor fees. I knew about the Court costs but was assuming the legal costs wouldn't be that much. I guess I'll find out in a couple of years time. Am sure it will only be hundreds though and not thousands if we go with the Separation Agreement. Lets hope so anyway!!

MirandaWest Thu 31-Jan-13 18:26:08

Thank you smile

I hope it is possible to say how we want it to be split and it can be - seems less possibility for battles. XH has been looking into his past pensions and thinks they will add up to my one pension. He also has a current one and believes it is cheaper to wait until he retires for me to get some portion of it as otherwise there are large fees? Given that there are not many assets it seems silly to use up some of it when I wouldn't get the benefit for years to come anyway (XH and I are very close in age).

If you are divorcing on the basis of two year separation can you start the proceedings before then or do we need to wait until April when the two years is up?

Guess I will find out more tomorrow - I do sometimes wish I could wave a wand and just be divorced grin

Collaborate Thu 31-Jan-13 20:27:08

Sorry to have to tell you but a separation agreement is not legally binding. That's what you get I suppose for £180.

There is no way on earth you can charge so little without ignoring the procedural requirements (that give it the best chance if being followed by a court in a later divorce) such as independent legal advice, disclosure etc.

She70 Thu 31-Jan-13 22:24:33

So the solicitor has given me incorrect information? How can I follow this up does anyone know because I've most definitely been told that the Separation Agreement is legally binding?

Now I am worrying. If its not legal then of course I do not want it. I am not trying to cut corners but am in unknown territory so if I am being told something by a solicitor then I am going to believe them!

I am not trying to not pay what is required, although by agreeing something between us we are hoping to avoid large solicitor fees. Is this not even possible? No matter how we go about it we have to incur large costs? Even to draw up an agreement between us?

God this is all so complicated. I literally want to curl into a ball and hide away from the world some days. It seems that nothing is straight forward.

She70 Thu 31-Jan-13 22:33:09

Ok, I just found this information :

Is a Separation Agreement legally binding?
An agreement of this kind is not a court order and the court is not involved in its preparation. For this reason, the terms of a separation agreement are not strictly speaking legally binding.
However, the courts are becoming far more willing to consider the terms of a separation agreement when it comes to divorce proceedings later on. Generally speaking the court is likely to follow the Separation Agreement, if it was entered into by both parties:
With the benefit of legal advice;
After the exchange of full and frank financial disclosure; and
There has been no significant change of circumstances, which would render the agreement unfair.
The time it takes to finalise financial affairs at the end of a marriage can be significantly reduced when a separation agreement has previously been drawn up.

Given that the proposal we both have agreed to is more than fair to both of us as it is pretty much an equal split of our assets I can't see a reason why a court would disagree with it. If anything I come out slightly worse off than I could if I went to court as I am not making any claim to my husbands pension which I understand I might be able to do. I guess we have to have an element of trust of one another. I'll have to give that some thought but as I'm not ready to start divorce proceedings and I was led to believe that this agreement would suffice until I was.

(Sorry mirandawest for hijacking your post, I'll stop now)

MOSagain Fri 01-Feb-13 08:15:24

she70, sadly that is not the case. For a start (from what I gathered from your posts) your H has not had independant legal advice and there has not been full financial disclosure (and you and your H have both been given advice on this).

Hopefully, in a few years time when you divorce, the terms agreed in the SA can be incorporated into a Consent Order (which will cost you more money) and hopefully will be approved by the court but it is not 100% certain. Nothing is certain.

Miranda You need to wait until the 2 year separation period is up before commencing divorce proceedings.

She70 Fri 01-Feb-13 11:27:05

So what happens in the case that your husband refuses any legal advice? This is his choice, nothing to do with me as I have encouraged and urged him to get legal advise. He just says he doesn't need to and is happy with what we have agreed between us.

Does this mean we will not be able to divorce? I just don't see how I can force him to go and get legal advise if he says he doesn't want to.

MirandaWest Fri 01-Feb-13 12:03:23

I'm wondering about that as well - XH is very sure he doesn't want to involve any solicitors and feels we can do it ourselves. I know other people on MN have (but I also know I have listened to him before and he is not always right... at least not with what is best for me).

She70 Fri 01-Feb-13 13:40:50

Its hard isn't it Miranda. I went and got some legal advise after my h and I had come up with a sort of agreement. I'm not sure what financial disclosure is as we both know what each other has got and are basically agreeing we keep whatever is in our own names. I wonder if we are not allowed to do that then?

My h has debts which have been accrued while we were married without my knowledge through gambling. His family have paid them off and he is now paying his family back without the interest charges. He agrees they are his debts so his responsibility.

I don't know. I sort of think if he doesn't want to get a solicitor surely that is his decision but maybe it doesn't work like that. I am in completely unknown territory so have no clue. We were just trying to keep it as amicable as we can even though there is a lot of animosity especially on my part as I've just had my life ripped apart overnight and have the two v young dc to consider. Something my h seems to have easily walked away from!

PostBellumBugsy Fri 01-Feb-13 13:53:57

Miranda, I think nowadays pensions are generally left well alone. Certainly, if you go to court, the days of spouses having claim on a pension 30 years down the line seem to be long gone - so I wouldn't worry too much about the pension.

The most important things is that the DC are housed as well as possible given the resources between you both.

When I was divorced in 2005 and had to go to court as H refused to cooperated. The assets were added up, the debts were subtracted and divided up between us to ensure that the parent with the DC could house them & so that the non-resident parent could also house them every 2nd weekend.

If you are coming to your own agreement regarding any assets / savings you have, then that should be fine, as long as you both agree and the DCs are taken care of.

MOSagain Fri 01-Feb-13 14:39:21

she70, it doesn't mean you can't divorce if your H doesn't seek legal advice. You need to remember that there are (normally) three parts to any divorce. The main suit (divorce), ancillary relief (finances) and children issues. It makes no difference to the actual divorce whether he choses to obtain legal advice, as long as he signs the acknowledgement of service form (which he will get with the divorce petition) then that will be fine.

Its the finances that are more complicated. Judges like to know that both parties have had the opportunity to seek legal advice on the financial settlement. I've had a few cases where one party (normally the man) hasn't had legal advice and in those situations, the DJ has sometimes asked him to attend a short court hearing just to confirm that he understands the ramifications. No point you worrying now what might happen in 2 years.

PostBellum its not true to say that pensions are generally left well alone. Every case is considered on the available assets. If there is a situation where there is a long marriage, the wife has no pension provision and the husband's CETV is significant, it would be wrong to ignore this.

PostBellumBugsy Fri 01-Feb-13 14:44:50

Sorry MOSagain, I should have said that I meant in divorces of younger couples - I thought that the 30 years down the line bit would be enough!

I think MirandaWest said that both she & her soon to be ex-H have their own pensions too.

Xenia Fri 01-Feb-13 15:33:51

Everyone is right about the separation agreement. There is no need to wait 2 yeras. Divorce now and after the nisi get the SA drawn up into a consent order and sealed by the court and there you have it.

If you sign the SA now and wait a few years to divorce and in the meantime in England one of you falls on hard times or loses their job or whatever you could demand more money even though you signed the sa, that is what people are syaing above and they are right.

You can certainly agree terms. We did and then just paid a lawyer each to draw them up and check them and had it sealed at court - in a consent order. no hearings at court at all.

Yes, pensions are often the most valuable asset and in our case we think they were both work about the same so each kept our own.

If you "agree" something which is ridiculously unfair the court would not agree it. If as in our case ex h got 60% of the assets (earned a lot less and I got a clean break from him) or if it were 30% to him and we both had lawyers it was doubtful the court would not approve it and it certainly was approved.

What people need to realise is the SA is not really what you want. Much better to get your divorce now - one of you can just say unreasonable behaviour so you can get it right away and have a sealed conent order - only then is it final. WHy wait 2 years - anything could happen in that period. Very very risky to wait. Although some higher earners want to wait as long as possible as they think the other low earner will shack up with a rich new spouse so there will be less to pay out. Sometimes delay is wise.

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