Accepting that your marriage has come to an end can be very difficult to cope with, emotionally and practically. It’s a huge life event, and you’ll need all the support you can muster from friends and family to get through it.
The practicalities of a divorce are something you’ll need expert help with. You’ll need to find a solicitor who specialises in Family Law. Very few divorce cases actually involve going to court - most of them are dealt with between solicitors and mediators, with paperwork being sent to court for a judge to approve without the need for you to go.
Every divorce is different, and every financial agreement is different; your solicitor will be able to give you tailored advice on how to divide the assets in your divorce but for now, here are the basic principles involved in splitting assets in a divorce.
What are matrimonial assets?
You’ll hear a lot about these during your divorce. Matrimonial assets are things you and your spouse acquired or built up during the marriage. The main matrimonial assets are usually the marital home, pensions, savings and cars.
Things you owned before the marriage, and things you own after separation (e.g. money from an inheritance, or savings), might not be considered matrimonial assets and might just be deemed to belong to whoever owns them in their name. However, if that would leave one of you in financial dire straits, those assets can be taken into account when dividing matrimonial assets.
Do you need to divorce to divide your matrimonial assets?
Some people start divorce proceedings straight away, after deciding to separate from their spouse, whilst others need more time to come to terms with the death of their marriage before tackling the legal formalities of divorce. The sooner you start divorce proceedings, though, the sooner you can divide assets because:
Any agreement you reach can only be made permanent within divorce proceedings;
- If you can’t agree on how to divide your assets between you, the divorce court can decide for you.
- If your religion forbids divorce, or you have other moral objections to it, you could apply for judicial separation - the court could then make orders or formalise your agreement about how to split the matrimonial assets without an actual divorce.
How are assets divided in divorce?
The starting point is to add up the value of all the matrimonial assets, and divide them 50:50. This is called the ‘yardstick of equality’. That ‘yardstick’ can move in favour of either of you because splitting everything equally isn’t always the same as splitting them fairly.
When deciding what’s fair, a judge (or a mediator, who can help you and your spouse reach an agreement, rather than resorting to letting a judge decide for you) will consider:
- The age and needs of any children of the family;
- The length of the marriage;
- The age and needs of both spouses;
- The earning and borrowing capacity of both spouses.
Let’s say you have young children who will live mostly with you after the divorce, and you’re earning less than your spouse because you need to spend time taking care of the children. A court might decide that a fair division of the matrimonial assets might be 70:30 in your favour.
How is the marital home divided in a divorce?
The marital home is usually a major asset in a divorce. It can be dealt with in several ways:
Additional Reading: Should I buy a new property before my divorce is finalised
- It can be kept so that one of you could live in it with the children, until they’ve finished full time education, then divided fairly between you;
- It can be sold and the equity (value of the house after the mortgage and selling costs have been paid) divided fairly;
- It can be transferred to one of you, if you can take on the mortgage and pay a lump sum to the other (or agree that your spouse can have more of the other assets such as their pension or savings to compensate them).
What happens to your pension in a divorce?
Your pensions are usually another major matrimonial asset to be divided. You might:
- Both keep your own pensions;
- Split the value of the pensions.
You could split the value of the pensions so that one of you gets more than the other. This might be to make up for the fact that one of you only has a small pension (e.g. because you haven’t earned as much over your career because you’ve been raising your children), or to compensate you if your spouse is to keep the house.
What about hidden assets in a divorce?
If you suspect that your spouse has hidden assets (e.g. by squirrelling away money into a savings account they haven’t mentioned in the paperwork seen by the solicitors, or by giving them to a friend to ‘keep’) there are ways your solicitor can uncover those assets.
The court can order:
- Banks, HMRC and the DVLA to provide evidence to show that your spouse has certain assets or accounts (a non-party disclosure order).
- A search for evidence of hidden assets such as share certificates in your spouse’s possession (an Anton Pillar or search order),
- That your spouse’s accounts be frozen to stop them from disposing of their money (a freezing order).
- That your spouse be treated as though they still own a certain asset that they’ve tried to hide by giving it to a friend or family member (an avoidance of disposition order).
- (If your spouse has recklessly spent money just so that you can’t have it) that the matrimonial assets be divided as if that money hadn’t been spent (an add back order).
These are all very specialist types of order and you need advice from your solicitor as to the best option for your circumstances.
How to divide the contents of the marital home in a divorce
This is a relatively minor thing to agree, but it can cause the biggest heartache. There are a few different ways to deal with dividing the contents in a marital home, such as:
- Whoever keeps the marital home keeps all the contents (and the other spouse gets more of the savings so that they can furnish their new home);
- The contents can be divided so that you both have the basics (e.g. a bed each, a wardrobe each) and the savings split so that you can both buy more furniture when you need it;
If you agree that you’ll take certain contents from the marital home but don’t yet have a new house, you could keep the furniture in a self storage unit until you have somewhere to keep them in the long term.
Personal items such as photo albums, children’s drawings, things of sentimental value … these are the trickiest to divide and really need to be agreed upon. If the court needs to decide for you, it will cost a lot of money, and that will ultimately reduce the amount you both get. Digital photos can be duplicated, drawings can be photographed, sentimental items will be looked after by both of you … There are ways around these emotive issues.
In a divorce, splitting assets is best done by agreement but the court and your solicitors are there to make sure it’s done fairly. Get legal advice early, and make the most of your first appointment by having details of your matrimonial assets with you. A divorce settlement rarely pleases either party, but the sooner it’s sorted, the less you’ll spend on legal fees and the quicker you’ll be able to move on.
If you're going through a divorce or separation and find yourself needing a bit of 'space' to breath, do get in touch as we have over 125 stores nationwide so we're bound to have one near you.