Whether you are considering starting divorce proceedings or they are already underway, it is vital to take legal advice early so that you understand what to expect and put yourself in the best position. The prospect of divorce can be incredibly daunting and uncertainty can be one of the biggest causes of anxiety. Unfortunately, the internet is littered with myths and half truths and whilst friends and family may offer well intended advice this can be misinformed.
Not only is it important to understand the divorce process and how your financial resources are likely to be divided, it is essential to have a strategy in place from the outset to maximise the prospects of achieving a fair outcome. There are also measures to protect your position so you aren’t disadvantaged later on in the process.
Here are our top things to consider:
Taking control of the divorce
The Petitioner within the divorce proceedings has more control over the timing of the important stages of the process, being the person to apply for each decree in most case:
- The decree nisi gives the court the power to make financial orders, which may be important if you want the court to formalise a financial agreement between you.
- The decree absolute ends the marriage which is an important change in status for all sorts of purposes including tax and entitlements after death. So if your spouse has a much larger pension from you, the timing of the end of the marriage is critical and you will want to make sure you have a pension sharing order in place before the decree absolute is applied for.
If your spouse has already instructed a solicitor to prepare a Petition on their behalf, all control is not necessarily lost. Early input from your solicitor should enable you to negotiate timing issues set out above and any contribution towards your spouse’s costs of the divorce if those have been claimed. Ideally they would share the draft divorce petition which would also provide you with the opportunity to agree the contents of the divorce petition, including any details of your behaviour or adultery on which the document might be based.
Understand your assets and future needs
If you or your spouse have complex assets it will be important to involve an appropriate accountant or financial adviser to ensure the true value and tax implications of dealing with those assets are understood before negotiations begin – this avoids doing anything which inadvertently creates an unnecessary tax liability, for example.
A financial adviser can also paint the picture of your future needs, which is often the driver for the financial outcome on divorce. The court’s priority is to meet the needs of each of you, living independently, and most importantly the needs of any children.
It is of primary importance that the relevant professionals are involved as soon as possible to avoid any potential pitfalls.
Protect your position
Whilst it may be tempting to bury your head in the sand or let your spouse drive the divorce you need to take advice to check if any steps are needed to protect your financial security. Some examples include:
- Reviewing whether you should move out of the family home – you may be under real pressure to do so but need to understand how this can impact on your financial contributions to its running costs and the prospect of a cost-effective negotiated settlement being achieved.
- Closing or regulating joint accounts or mortgages where appropriate, ensuring additional direct debits cannot be set up or restricting overdrafts for which you may be wholly liable. Flexible mortgage drawdown facilities can be abused and so if there is any risk of that you need to let the lender know joint signatures must be required;
- If you own a business with your spouse, ensure that you don’t take any drastic measures, such as resigning or transferring shares without taking appropriate advice. This could have tax consequences as well as you losing bargaining power.
- Retaining control of valuable possessions if there is a risk they may be dispensed of by your spouse – if you move out, ensure you take them with you unless you trust that they will be preserved;
- Considering if any early court applications are needed, for example to seek financial support from your spouse so that you can afford to fund your living costs (and potentially legal fees) during the divorce process; or to seek an injunction if there is a real risk that valuable assets may be spent or hidden;
- Registering your home rights if the family home is owned legally in your spouse’s name, or changing the way you co-own property so that you could change your will to leave your share to someone other than your spouse if you wish;
Taking early specialist advice and protecting your position will give you the peace of mind that your financial future will not be irreparably disadvantaged, knowing what to expect as you go through the process. Investing in legal support is good for your well-being, during what is an emotional and stressful time for all concerned.
If you haven’t already instructed professionals to act on your behalf, it is important that you choose appropriate experts with the necessary knowledge and experience to handle your case. The family team at Stephens Scown are ranked in both Legal 500 and Chambers & Partners and regularly work with a network of outstanding professionals to ensure holistic advice and guidance is provided.